Gaynor and Scaife
[2012] FMCAfam 698
•30 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GAYNOR & SCAIFE | [2012] FMCAfam 698 |
| FAMILY LAW – Parenting – dispute about specific issues concerning twins aged 3 – major issue the children’s surname – whether the children’s surname should be changed from the mother’s surname to a hyphenated surname incorporating the father’s surname – relevance of the fact that the parties agreed on the children’s surname prior to their birth and carried that agreement into effect – whether any restriction should be placed on the mother posting information about or photographs of the children on her Facebook page. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Flanagan & Handcock (2000)FLC93-074 Ryan & Burnett (2008)FamCAFC72 |
| Applicant: | MR GAYNOR |
| Respondent: | MS SCAIFE |
| File Number: | NCC 2385 of 2011 |
| Judgment of: | Terry FM |
| Hearing date: | 25 June 2012 |
| Date of Last Submission: | 25 June 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 30 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | MBG Lawyers |
| Counsel for the Respondent: | Mr Boyd |
| Solicitors for the Respondent: | Everingham Solomons |
ORDERS
THE FOLLOWINGS ORDERS AND NOTATIONS ARE MADE BY CONSENT:
That the father and mother have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2009.
That the father have responsibility for decisions as to the children’s day to day care welfare and development during periods when the children are living with him and that the mother have that responsibility when the children are living with her.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made.
(b)They shall consult with each other on terms that they agree.
(c)They shall make a genuine effort to come to a joint decision.
That the children live with the mother at such times as they are not living with the father in accordance with these orders.
That the children live with the father as agreed between the parties and failing agreement as follows:-
(i)Each alternate weekend during school terms from 5.00pm on Friday until 5.00pm on Sunday.
(ii)Commencing in 2013 during the Term 1, 2 & 3 school holidays each year as follows:
(a)In odd numbered years from 9.00am on the first Saturday until 5.00pm on the second Sunday thereafter.
(b)In even numbered years from 9.00am on the second Saturday until 5.00pm on the Sunday before school resumes.
Special Occasions:
That notwithstanding anything to the contrary herein the children will spend:
(i)Easter:
The Easter long weekend (save and except for when Easter falls during the school holidays, in which event the school holiday arrangements will apply) with the father from 9.00am on Good Friday until 5.00pm on Easter Monday on first such occurrence and each alternate occurrence thereafter and the children will remain with the Mother on the second such occurrence and each alternate occurrence thereafter.
(ii)The children’s birthday:
Whichever parent does not have care of the children on their birthday shall spend time with the children from 1.00pm to 5.00pm on such day, unless the children are in day care/pre-school/school and on such days the time shall be from after day care/pre-school/school until 7.30pm.
(iii)Mother’s Day and Father’s Day
The children shall spend the duration of the weekend of Father’s Day with the father and the duration of the weekend of Mother’s Day with the mother regardless of the ordinary operation of the above orders.
If the father is unable to spend time with the children in accordance with the above orders he will give the mother notice as soon as reasonably practicable.
Communication:
(i)The children shall have communication with the parties at all times as may be agreed between the parties and failing agreement:-
(a)by telephone between 6.30pm and 7.30pm each Monday and Thursday;
(b)on the children’s birthday and on Christmas Day between 8.00am and 9.00am
to be implemented by the parent who is not then with the children telephoning the other’s telephone number and the other parent ensuring that the children are available to receive the calls.
The children be permitted to receive letters from either parent and when age appropriate be permitted to communicate with either parent by telephone, email, or other forms of communication at all reasonable times.
Specific Issues:
(ii)That the Mother forthwith do all acts and things and sign all documents necessary to authorise the children’s’ day care provider and / or pre-school to:
(a)communicate with the father and provide all information requested by him.
(b)permit the father or his nominee to collect and deliver the children to and from day care and/or pre-school in the event of an emergency.
(ii)That unless otherwise agreed in writing, the children shall attend (omitted) Day Care at (omitted) during their pre-school years and (omitted) Primary School during their primary school years.
(iii)That each party shall:-
(a)keep the other party advised of their current residential address, email address, landline and mobile telephone numbers if applicable and notify the other within 3 days of any change to the above.
(b)as soon as practicable notify the other party should the children suffer a serious illness or accident requiring medical treatment whilst in that party’s care.
(c)keep the other party informed by e-mail or telephone of all the children’s extra curricula sporting, cultural and other activities.
(d)not denigrate the other party or any member of the other party’s family in the presence or hearing of the children or permit any other person to do so.
(e)not discuss these court proceedings in the presence of the children nor permit any person to do so.
(f)keep each other fully informed of all matters concerning the children’s health, including any medication prescribed for the children and the names of medical practitioners and health professionals who attend the children from time to time and any future appointments and shall authorise such person/s to provide the other party with such information that may be sought by that party from time to time and the parties shall be hereby authorised to see such information.
(g)keep each other fully informed of the children’s day care, pre-school and schools and authorise such day care, pre-school or school to provide each other with such information concerning the children as may be requested by either party from time to time and both parties shall be hereby authorised to receive that information.
NOTATIONS:
A.The mother and father undertake to use their best endeavours to be fully committed to working together to promote the welfare of the children.
BThe parties acknowledge that these orders are made in contemplation of the young age of the children at the time they are made. The parties agree that it is likely that they will need to review these orders as the children age. The parties acknowledge that they will use their best endeavours to reach agreement when reviewing these orders and in relation to resolving disputes about the terms or operation of these Orders. The process to be used in the event of a dispute shall be as follows:
(1)The parties shall consult with a Family Dispute Resolution Practitioner OR Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made.
(2) They shall pay the costs of the Family Dispute Resolution Practitioner equally
(3)In the event that they cannot agree on a Family Dispute Resolute practitioner:
(i)The father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability
(ii)The mother shall choose one of the listed practitioners within seven (7) days of receipt of the list
(iii)If the mother fails to choose then the father may choose.
AND IT IS ORDERED:
That the father’s application for change of the children’s surname is dismissed.
That from the date on which the children commence full time school the father’s time with the children on alternate weekends shall end at 5.00pm on Monday rather than 5.00pm on Sunday if Monday is a public holiday.
That the children shall spend time with the father during the Term 3 school holidays in 2012 from 9.00am on the first Saturday of the holidays to 5.00pm the following Thursday.
That unless otherwise agreed between the parties:
(i)During the 2012/13 Christmas school holidays the children shall spend time with the father from 9.00am on 22 December 2012 until 9.00am on 28 December 2012; from 9.00am on 3 January 2013 until 9.00am on 9 January 2013 and from 9.00am on 15 January 2013 until 9.00am on 21 January 2013.
(ii)During the 2013/2014 Christmas school holidays the children shall spend time with the father from 9.00am on 27 December 2013 until 9.00am on 2 January 2014, from 9.00am on 8 January 2014 until 9.00am on 14 January 2014 and from 9.00am on 20 January 2014 until 5.00pm on 26 January 2014.
(iii)During the 2014/15 Christmas school holidays from 9.00am on 20 December 2014 until 9.00am on 26 December 2014, from 9.00am on 1 January 2015 until 9.00am on 7 January 2015 and from 9.00am on 13 January 2015 until 9.00am on 19 January 2015.
Commencing from the 2015/16 Christmas school holidays the children shall spend time with the father for the second half of the holidays which commence in odd numbered years and the first half of the holidays which commence in even numbered years.
That for the avoidance of doubt the Term 1, 2 and 3 school holidays are deemed to commence at 9.00am on the first Saturday of each school holiday period and end at 5.00pm on the last Sunday of the school holiday period and the Christmas school holidays from 2015 onwards are deemed to commence at 9.00am on the first Saturday of the holidays and end at 5.00pm on the day prior to the commencement of the new school term.
That the father’s application to spend extended weekends with the children on six occasions between 22 November 2012 and 10 December 2013 is dismissed.
That unless otherwise agreed between the parties until the commencement of the first school term in 2014 changeovers of the children between the parties shall take place by the father or his nominee collecting the children from the mother’s home at the commencement of the father’s time and returning the children to the mother’s home at the conclusion of his time.
That thereafter unless otherwise agreed between the parties changeovers of the children between the parties shall take place by the father or his nominee collecting the children from the mother’s home at the commencement of the father’s time and the mother or her nominee collecting the children from the paternal grandparents’ home at the conclusion of the father’s time.
That each parent shall promptly enrol in and complete all sessions of a post-separation parenting course of a type such as “Parents not Partners” and shall provide the other party with a copy of the certificate of completion of the course. Each parent shall use their best endeavours to complete the course within six months.
That neither parent may without the consent of the other in writing attend or remain at the children’s day care centre except for the purposes of dropping off and picking up the children, attending events at the centre to which parents are invited, dealing with emergencies and subject to order (22) on no more than one occasion each term, speaking to the director or appropriate person at the centre about the children’s progress.
That the father shall not attend at the Centre to speak to the director or other appropriate person pursuant to order (21) unless he has first given the mother 7 days notice in writing of the day on which he intends to do so.
That the father’s request for a notation to be made to the orders concerning the mother’s use of social networking sites is dismissed.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gaynor & Scaife is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2385 of 2011
| MR GAYNOR |
Applicant
And
| MS SCAIFE |
Respondent
REASONS FOR JUDGMENT
Introduction
Since the father filed his application for parenting orders in September 2011 Mr Gaynor and Ms Scaife have been able to agree about many things concerning the parenting of their three year old twin sons X and Y, but a number of discrete issues remain in dispute.
The agreed matters are as follows:
a)The parents will have equal shared parental responsibility for the children.
b)The children will live with the mother and spend time with the father.
It was agreed that this order would be drafted as a “live with/live with” order rather than a “live with/spend time with” order, but the reality of the situation is that the children will be living primarily with the mother.
c)The children will spend time with the father:
(i)each alternate weekend during school terms from 5.00pm on Friday until 5.00pm on Sunday.
(ii)for a little over half of the shorter school holidays from 2013 onwards.
(iii)on special days.
Although the children are not yet of school age the parents have decided to start using school terms and school holidays immediately as the template for the division of the children’s time.
d)Each parent will have telephone, Skype or written communication with the children when they are with the other.
e)A series of what might be termed ‘the usual orders’ will be made, providing for non-denigration, for each parent to have access to educational and medical information about the children, for each parent to keep the other advised of their contact details and for each parent to notify the other in the event of the children being involved in an accident or medical emergency
f)A notation will be made confirming the commitment of the parents to work together to promote the welfare of the children, their acknowledgement that the orders might need to be reviewed as the children become older and their willingness to attend family dispute resolution in the event of any future disputes.
The matters in dispute are as follows:
(i)Whether the children’s surnames should be changed.
The children’s surnames are Scaife, as a result of an agreement made between the parents prior to their birth.
The father sought an order that the surnames be changed to either Scaife-Gaynor or Gaynor-Scaife. In one of his affidavits he said that even an unhyphenated name would be acceptable but no reference was made to that during the hearing.
The mother opposed any change of surname.
(ii)Whether the children’s time with the father on alternate weekends should end at 5.00pm on Monday if Monday is a public holiday rather than at 5.00pm on Sunday.
The father proposed this, the mother opposed it.
(iii)How much time the children should spend with the father during the Term 2 and 3 school holidays in 2012
Both parents propose that the children spend four nights with the father in the Term 2 school holidays and five nights in the Term 3 school holidays, but they disagree about the start and end time on the first and last day, and the father also wants to have the children on the last weekend of the holidays.
The father’s proposal in detail was that children should spend time with him:
· From 9.00am on the 1st Saturday of the Term 2 school holidays until 5.00pm the following Wednesday, and from 5.00pm on the last Friday until 5.00pm on the last Sunday;
· From 9.00am on the 1st Saturday of the Term 3 school holidays until 5.00pm on the following Thursday and from 5.00pm on the last Friday until 5.00pm on the Sunday.
The mother’s proposal in detail was that the father should spend time with the children
· From 12.00 noon on the 1st Saturday until 12.00 noon the following Wednesday of the Term 2 school holidays;
· From 12.00 noon on the 1st Saturday until 12.00 noon on the next Thursday of the Term 3 school holidays.
The Term 2 school holidays have passed since the matter was heard and the only issue requiring determination is the arrangements for the Term 3 school holidays.
iv) How time should be configured during the Christmas school holidays
The parents agree that commencing in 2015 the children should spend alternating first/half second half of the Christmas holidays with each of them.
The only disagreement about this period was about whether in the years the children are with the mother for the first half of the holidays they should spend time with the father from 3.00pm on Christmas Day to 3.00pm on Boxing Day.
The father sought this, the mother opposed it. She does not seek time with the children on Christmas Day in the years when they are with the father for the first half of the holidays.
The mother said during cross-examination that she had no objection to the children spending time with the father prior to Christmas, perhaps between 21 and 23 December, in any years when she had the first half of the holidays.
The parties’ proposals about the Christmas holidays in 2012, 2013 and 2014 shifted during the hearing and remained difficult to grapple with at the end.
In the Minute of Order which the father’s counsel handed up during the hearing the father sought an order that time during these holidays be divided week about from Saturday to Saturday. The mother signified an in principle agreement to this but unfortunately there are not six weeks in the holidays, only five weeks and a few days.
The father will have the children first in 2012 and 2014 (to include Christmas Day) and in his Minute of Order he did not seek time with them on Christmas Day 2013. His counsel’s questioning of the mother during cross-examination however suggested that this might have been an oversight.
v)Whether the children should spend six periods of 5 nights/5 days with the father on specified occasions in November 2012, December 2012, February 2013 (twice), July 2013 and December 2013.
On its face this appears to be a proposal the children spend six additional periods with the father, but during final submissions the father’s counsel said that the father’s proposal was that on those six occasions his time on alternate weekends should commence at 5.00pm on Thursday and end at 5.00pm the following Tuesday rather than commence at 5.00pm Friday and end at 5.00pm Sunday.
The mother is opposed to this additional time taking place.
(vi) How changeovers should be done.
The father proposed that he and the paternal grandparents collect the children from the mother’s home at the commencement of his time and that the mother collect the children from the paternal grandparent’s home at the conclusion of his time.
The mother proposed that the paternal grandparents collect the children from and return them to her home and that the father not be present at changeovers.
The father indicated during the hearing that he was opposed to absenting himself from changeovers and to being responsible for all of the driving and he put forward an alternative proposal, namely that changeovers occur at McDonalds in (omitted) and that he give the mother fuel money.
(vii)Whether the father should be restrained from attending at the children’s day care centre/pre-school save for drop off and pick up, attendance at special events and in the event of emergencies, with the same restriction to apply to the mother.
The mother proposed this restraint.
The father said that he wanted to be free to drop in to the centre from time to time and find out from staff how the children were going but was prepared to agree that he not to go to the centre for the purpose of spending time with the children. He said that it was unnecessary for an order to be made about this.
(viii)Whether a notation should be made to the orders signifying the mother’s agreement that she would not place photographs of or information about the children on social networking sites.
The father proposed that the following notation be added to the orders:
The parties agree that they will use their best endeavours to protect the children’s privacy on social networking sites such as Facebook. The parties agree that no photographs, images or private information of the children will be published in any public forum by the father or the mother, unless with the prior written agreement of both parties.
The mother said that she wished to continue to use her Facebook page to share photographs of and information about the children with friends and family.
The evidence
The father relied on his Amended Initiating Application filed on 25 May 2012, his affidavits filed on 8 September 2011 and 4 June 2012, a proof of evidence tendered on 25 June 2012 and the affidavit of the paternal grandmother Mrs Gaynor filed on 12 June 2012.
The mother relied on her Amended Response filed on 20 June 2012 and her affidavits filed on 11 November 2011 and 20 June 2012.
The father, mother and paternal grandmother were cross-examined.
Background
The father is 38 and the mother 37. They met in about 2007 when they were both living in Sydney and were working as a (omitted) and (omitted) respectively.
The father and mother have never lived together and they were not in a committed relationship when the mother fell pregnant in about October 2008. The mother’s pregnancy was a shock to her.
When the mother discovered that she was pregnant she promptly informed the father about it and the father attended some pre-natal events with the mother and was present at the children’s birth. He nevertheless told the mother from the start that he had reservations about paternity and that he wanted a paternity test done. The mother had no doubt about paternity but agreed to the test.
X and Y were born on (omitted) 2009 and after their birth the mother became their primary carer. The father took a weeks paternity leave and assisted with the children’s care when he could.
At different times the paternal and maternal grandmothers both came to Sydney from their homes in (omitted) (near (omitted)) and (omitted) (near (omitted)) respectively to provide the mother with support and assistance.
On 12 August 2009 the parties received the results of the paternity tests, which confirmed that the father was indeed the children’s father. On the same day the parties signed the birth registration forms for the children.
In September 2009 the mother relocated to (omitted) with the twins. The mother said that the father encouraged her to do so, stating that it would be best if she lived in (omitted) where she had family support. The father said that he “did not consent to the mother relocating permanently” but he did not explain what he meant by that.
In due course the mother obtained part time work in (omitted) and enrolled the children in day care three days a week.
The father travelled to (omitted) frequently to spend time with the children, and from January 2011 began spending time with them each alternate weekend from Saturday to Sunday.
The father’s routine for these visits was that he would fly to (omitted) from Sydney and the paternal grandparents would drive three hours from their home in (omitted) and meet him at the airport. The paternal grandparents would provide transport for the weekend and at the end of the visit the father would fly back to Sydney.
During 2011 the father proposed to the mother that he commence spending time with the children each alternate weekend at the paternal grandparents’ home in (omitted). He proposed that the paternal grandparents drive to (omitted) to pick the children up on Friday and that the mother collect them from the paternal grandparents’ home on Sunday and drive them back to (omitted).
The mother said that she would not agree to this and on 13 September 2011 the father filed an application for parenting orders.
On 11 November 2011 the mother filed a response and affidavit. In her affidavit she said that she had thought carefully about the father’s proposal and was concerned about the amount of travel it would involve for the children. She said that she had investigated the (omitted) area, which was close to the paternal grandparents’ home, and had decided that the best option for the children would be if she moved to that area.
The father said that he was agreeable to this and the mother set about making arrangements to relocate.
On 14 November 2011 interim orders were made which provided for the children to live with the mother and until 19 December 2011 to spend time with the father each alternate weekend from 9.00am Saturday until 5.30pm on Sunday.
While the mother remained in (omitted) the paternal grandparents were to collect the children from and return them to the mother in (omitted), but as of January 2012, when the mother expected to be in settled in the (omitted) area, the father was to collect the children from the mother’s residence at the commencement of his time and the mother was to collect the children from the paternal grandparents home at (omitted) at the conclusion of that time.
The mother commenced living at (omitted) with the children on 28 January 2012. She commenced working on Tuesday, Wednesday and Thursday at (omitted) and she arranged for the children to attend (omitted) Day Care Centre on those days.
(omitted) is about 20 minutes drive from the paternal grandparents home in (omitted).
The mother thought through her plans to relocate to the (omitted) area very carefully. She said as follows in her affidavit filed 11 November 2011:
As our children get older and they attend pre-schools and formal education I want them to be able to have cultural, social and educational freedom. I feel very sorry for children who have sit in a car every second weekend and travel away from their friends and family and their sporting activities. I do not think this is an ideal situation to have that.
The mother said that she carefully calculated the financial consequences of the move and decided that she could manage based on her prospective part time income, government benefits and the child support the father was paying.
Unbeknown to the mother however after she put forward her proposal to move and after the father agreed to it the father applied to his employer to take two years leave of absence in order to study for a (omitted).
The father admitted during the hearing that he had applied for and was granted this leave in November 2011.
The father did not tell the mother what he had done. The mother found out in February 2012 via a letter from the Child Support Agency that her child support was to drop from $503.89 per fortnight to $93.98 per fortnight, and in April 2012 that it was to drop to zero because the father had lodged an estimate of income stating that he was receiving $4,442.00 per annum.
The mother did not discover until 6 June 2012 that the father had taken a two year leave of absence from work.
This development has caused hardship for the mother. In her affidavit she said as follows:
I would never have moved from (omitted), New South Wales where my mother and father reside, where I have extended family support, where I have friends to assist with my day to day support [if I had known that the child support was to cease]. My mother and father used to attend my home and or deliver groceries which was of great assistance. To relocate to the (omitted) area it has cost me thousands for a removalist. I have had to outlay moneys for bond, my rent has also increased by $20.00 per week and I have no maternal family members close by. I had expended all this money to reside in the (omitted) area whereby it would be easier for the children and their father and the paternal grandparents to spend time with the children to now have my income drop by $500.00 a fortnight without warning.[1]
[1] Mother’s affidavit filed 20 June 2012
The father’s failure to be frank with the mother about his plans has done nothing for the parties’ relationship. Nevertheless the mother is settled in her new location and intends to remain there. The parties have agreed on the primary school the children will attend once they are of school age, and the mother is proposing to return to full time work at that point.
The father is studying for his (omitted) through (omitted) University, but he attends lectures in Sydney and he lives in Sydney during the week. He spends time with the children on alternate weekends at the paternal grandparents’ home in (omitted).
The evidence about the issues in dispute
The first and perhaps the major disputed issue concerned the children’s surname.
By agreement between the parties the children were registered in 2009 as X and Y.
The father said that this came about as follows:
Before the children were born, Ms Scaife and I agreed to register the children with the surname Scaife because at that stage I was not sure as to their paternity. At that time Ms Scaife said to me “We can always change it later.”[2]
[2] Father’s affidavit filed 8 September 2011 paragraph 34
The father agreed he had not raised with the mother until he commenced proceedings in September 2011 that he wanted the surname changed but said that he would have raised it with her earlier had she agreed to attend mediation as he requested.
The father sought to give the impression that he had always harboured a desire for his name to be part of the children’s surname and that while he had gone along with the original agreement after paternity was established he had just been wanting for the right moment to raise it, a moment which never seemed to arise because of the parties’ busy lives.
During cross examination however the father said that he had decided to press for a change of surname:
When it became obvious to me that Ms Scaife was going to make it difficult for me to see [the children].
In his first affidavit the father said that the reason he wanted the surname changed was that it was “right and proper” that the children should have his surname as well as the mother’s and that this was important for their sense of identity.
In his second affidavit and during oral evidence the father gave further reasons for wanting the change, namely so that the children would be aware of their connection with his family, and so that the children would not think when they grew older that he had not wanted them to have his surname.
The father said that the children were young and had no identification with a surname, so changing their surname would be of no moment to them, and for the mother it would simply involve a few administrative things such as getting a new Medicare card.
The mother said that prior to the children’s birth she and the father had many discussions about issues concerning the children, including the choice of first names, the choice of a surname, circumcision and religion.
The mother said that she told the father that she wanted the children to have her surname and that she and the father had discussed the issue at length. She said that the father went away to think about it and a few days later came back and said that he agreed that the children’s surname should be Scaife as they would mainly be with the mother.
The mother denied that she had ever told the father that the surnames could be changed later.
The mother said that the paternity test results were received on 12 August 2009 and later that day the parties sat down at the mother’s kitchen table and completed the Birth Registration Statements.
The mother annexed copies of the Birth Registration Statements to her 16 February 2012 affidavit. Question 1 on the form is as follows:
What is the child’s family name or surname?
You can use the mother’s family name, the father’s family name, a combination of the two, or any other family name you choose for your child’s surname
In the box for each child the parties inserted the surname “Scaife.” They then completed the rest of the form for each child and they both signed the forms.
On 2 October 2010 the twins were christened in (omitted) Church at (omitted) as X and Y. The parties are both (religion omitted) and the father was present at the christening.
The mother said that she was opposed to the surname being changed because she and the father had agreed on something more than three years ago and had carried the agreement into effect.
It was put to the mother that she opposed the children having “Gaynor” as part of their surname because she was concerned about the children being teased at school. The mother said that the father had told her that he was teased at school because of his surname but that she did not have a problem with the surname Gaynor. I have no reason to disbelieve the mother, and I am not satisfied that the mother opposes the change to the children’s surnames because of a concern about the children having the surname Gaynor.
The mother’s narrative about the surname issue was by far the more consistent and credible.
The father’s statement in his first affidavit that he originally agreed to the children being called Scaife because he was not sure about paternity was misleading, because the father agreed to the children being registered as Scaife after the paternity test results were received.
The impression the father sought to convey that he always wanted the surname changed and had just waiting for the right moment to mention it does not sit comfortably with his answer during cross-examination referred to at paragraph 39 or with his behaviour between 2009 and 2011. He attended the children’s christening in 2010 and he did not mention to the mother during a telephone mediation in 2010 that the surname was an issue.
I am satisfied on the balance of probabilities that the father agreed to the children being named Scaife willingly and after giving the matter thought in 2009 and that the mother did not tell him that it could always be changed later. I am comfortably satisfied that the father’s decision to agitate for a change of surname is a recent one.
None of these findings mean that the father’s application to change the surname should not be given due consideration, but they are the background against which his application must be considered.
The next issue was whether the father’s time on alternate weekends should end at 5.00pm on Monday rather than 5.00pm on Sunday if Monday is a public holiday.
The father proposed this on the basis that as he would be available that day it was logical for the children to spend that extra time with him.
The mother opposed it on the basis that she wanted the children back in her care for a day to settle them before they went back to day care.
The next issue was the time during the Term 2 and 3 school holidays in 2012 or as it now stands time during the Term 3 school holidays.
The father through his counsel said that he was seeking to have the final weekend as well as the block time because otherwise 11 days would pass when he did not see the children.
On one view of the evidence the mother during cross-examination seemed to signify assent to the father having that last weekend as well as the earlier block of time but I am not convinced that the proposition was clearly put to the mother and therefore I am not convinced that I can take the answer the mother gave as informed consent to the father’s proposal.
The mother did not satisfactorily explain why she wanted changeover during these holidays to be at 12 noon rather than 9.00am.
The next dispute was over how time should be configured during the Christmas school holidays.
The parents agreed that the children should spend half of the Christmas school holidays with each of them from 2015 onwards. The only dispute concerning this period was whether the children should spend time with the father on Christmas Day in the years when the children would be with the mother for the first half of the holidays.
The mother was originally opposed to this occurring because of concerns about the children being required to travel. She said that she would very likely spend Christmas in (omitted).
The father said during the hearing that if it meant he could spend time with the children on Christmas Day he would do the driving to wherever the mother happened to be at the time, whether it was (omitted), (omitted)or Sydney.
The father’s proposal that he do the travelling did away with the mother original concern, but the mother remained opposed to the proposal, preferring that each parent be free to enjoy Christmas Day with the children in “their” year with no requirement for the children to travel anywhere at all on that day.
I can understand the father’s desire to spend time with the children every Christmas Day if possible and I do not consider that he was being unreasonable in pressing this point, but the mother gave cogent reasons for her position and I did not form the view that she was being unreasonably stubborn or oppositional either.
The next dispute was about whether the children should spend six periods of five nights on specified occasions in November 2012, December 2012, February 2013 (twice) July 2013 and December 2013
The father said that during 2012 and 2013 while he was studying he would be on holidays in November and February each year and that as he would have the time to do so he should be able to spend extra time with the children.
During final submissions the father’s counsel clarified that what the father was seeking was not six additional five day periods but an extension of time around his normal alternate weekends.
The mother considered that this would be unsettling for the children. The father proposed that his time start on Thursday evening, so it would mean that the children would spend three days in day care and then spend five days with the father (who may or may not take them to day care but that does not matter), then be returned to her for the night and spend the next two days in day care (because the mother needs to work) before she had a day off to spend with them.
The mother said that she had carefully chosen the days on which she worked so that she would be available to spend the whole day with the children on the day prior to and the day following them spending time with the father and before they returned to day care. She considered that this arrangement was best designed to meet the children’s emotional needs at their present age.
The next issue in dispute was about how changeovers should be done.
Pursuant to the interim orders made on 14 November 2011 the driving is shared, with the father picking the children up from the mother’s home at the commencement of his time with the children and the mother picking the children up from the paternal grandparent’s home at the conclusion of the time.
The mother proposed that for the next two years the father (or paternal grandparents) should do both pick up and drop off and that the father not be present at changeovers.
The mother said that the father should be responsible for all the travel because he would be paying no child support during this period. If he bore the cost of travel for changeover this would be at least some contribution he could make to the financial support of his children.
The mother said that it was preferable that the father not be personally present at changeovers because she and the father had a very poor relationship at present and the children might be exposed to conflict.
To illustrate that this was a risk the mother’s counsel referred to a recent occasion where the mother asked the father at changeover to take the children’s scooters with him when he picked up the children. The father refused. Y sat in the back of the paternal grandparents’ car crying out for his scooter.
The father said during cross-examination that he had refused to take the scooters because a friend of the families had bought scooters for the children and those scooters were waiting for the children at the paternal grandparents’ home. Unfortunately the father did not attempt to tell the mother this at the changeover, and the result was that both parents became upset, the mother became confrontational and the children were exposed to conflict.
The father gave evidence during re-examination about a couple of occasions where conflict had occurred between the parties at changeovers in (omitted).
The father said that the conflict had been the mother’s fault on every occasion and that it was most unreasonable for her to suggest that as a result he, the children’s father, should not attend changeovers. Alternatively it was submitted that overt conflict had been infrequent and that the risk of future conflict was not sufficiently high to warrant excluding him from changeovers.
The father’s counsel put an alternative proposal to the mother during cross-examination, namely that changeovers should take place at McDonald’s in (omitted) and that the father pay the mother petrol money. The father’s counsel submitted that a changeover at a public place such as McDonalds would ensure that the parents were on their best behaviour and that no conflict occurred.
The mother was not interested in this alternative.
The next dispute was over whether the father should be restrained from attending at the children’s day care centre/pre-school save for special occasions and in the event of an emergency, with the same restriction to apply to the mother
The children attend (omitted) Day Care Centre on Tuesday, Wednesday and Thursday each week while the mother is working.
The father and indeed both counsel consistently referred to (omitted) Day Care Centre as a pre-school, but the children were two years old when they commenced at (omitted) and they have only just turned three. The centre may well offer some activities in the nature of pre-school activities but it is clear enough that it is a day care centre and not a dedicated pre-school.
The mother informed the father that she had enrolled the children at (omitted) and when he asked if could attend on the children’s first day she agreed to him doing so.
The mother is paying the fees for the children’s attendance.
In February 2012 the father went to the centre by himself and interacted with the children there. The mother said that she found out about this later from Ms P, the director of the centre, who told her that the children were unsettled by the visit. The mother sent the father an email requesting that in future he speak to her first before attending at the centre.
The father went to the centre again in June 2012 without first informing the mother. He said that he did this in order to ask Ms P whether she had in fact been concerned about his visit in February. The father said that Ms P told him that his visit in February had not disturbed the children and that he was welcome to visit the children at the centre at any time and participate in their activities.
Neither party provided any evidence from Ms P nor anyone else connected with the centre and the only evidence I have about this issue is the conflicting statements of the parents.
The father’s counsel indicated during the course of the hearing that the father had no intention of trying to spend time with the children again at the centre but that he wanted to be free to attend the centre to talk to the relevant personnel about the children’s progress.
The final dispute was over whether the mother should be restricted as to placing photographs or information about the children on social networking sites
The substance of the father’s complaint was about the mother “having X and Y on Facebook.” The father said that the mother had posted numerous photographs of the children on her Facebook page and had published personal information about them which were accessible to her 448 friends, although no longer to him as she had blocked him late last year.
The father expressed concern that strangers might access the information and be able to track the children’s movements.
The father said that the mother should remove all photographs or personal information about the children from her site and be restricted to sharing photos and information about the children with her friends and family by email.
The father gave no examples of the kind of information the mother had placed on the site and did not suggest that any inappropriate or indecent or questionable photographs of the children (for examples photographs of the children in the bath) had been posted.
The mother indicated through her counsel that she would agree to a notation that she respect the children privacy but would not agree to remove photographs or information or to cease using the site to exchange those things with friends and family. The mother’s counsel did not explain nor the mother give any evidence about what the mother thought a notation requiring her to respect the children’s privacy meant.
The applicable law
Pursuant to s.6OCA of the Family Law Act any parenting orders I make must be orders determined by treating the children’s best interests as the paramount consideration.
Most of the orders sought in this case are clearly parenting orders, but there has been some controversy in the past about whether an application for an order concerning a child’s surname is an application for a parenting order.
Boland J considered this in Ryan & Burnett[3]. In that case there were two competing applications, one by the mother seeking to restrain the father from using any other surname for the child but Ryan, and one by the father seeking an order that the child’s surname be changed from Ryan to Burnett-Ryan.
[3] Ryan & Burnett (2008) FamCAFC72
For reasons set out at length in her judgment Boland J said that she tended to view that the father’s application was an application for a parenting order, and that therefore the best interests of the child should be treated as the paramount consideration when determining whether the order should be made, although she expressed no concluded view because the matter was not argued before her.[4]
[4] Ryan & Burnett (2008) (supra) paragraphs 48-51
Boland J observed that even if the child’s best interests were not the paramount consideration in a surname application they were a very relevant consideration.
The father’s application in the case before me is an application to change the children’s surname and I also tend to the view that it is an application for a parenting order and that therefore the children’s best interests are the paramount consideration. Neither counsel attempted to persuade me that some other consideration was relevant, unless the suggestion by the father’s counsel that there was some general principal in Australia that children should bear their father’s surnames is deemed such an argument.
The children’s best interests
In order to determine X & Y’s best interests I must have regard to the considerations in S.60CC(2) and (3) of the Family Law Act (as it stood prior to 7 June 2012).
The primary considerations in s.60CC(2) are:
(i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
(ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
X and Y will clearly benefit from having a meaningful relationship with both the mother and the father, who are both good parents and there are no issues of abuse or neglect in this case.
Possible issues of family violence emerged during the father’s answers in re-examination but neither counsel sought to make anything of this.
The additional considerations are contained in s.60CC(3), and the first of these is any views expressed by the children.
The children are too young to have a view about any of the issues in dispute.
The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including grandparents of the children.
The children have a good relationship with both of their parents and with members of their extended family.
I must next have regard to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
I am satisfied that despite the personal bitterness they obviously feel toward each other at the moment both parents have this willingness and ability.
There was nothing in the evidence to suggest that the father wished to undermine the children’s relationship with the mother.
The mother does not denigrate the father to the children and has never tried to prevent the father from seeing them. The father commenced these proceedings not because he was fighting for a foothold in the children’s lives but because he wanted to begin seeing them at his parents’ home at (omitted) rather than in (omitted).
The mother’s response to this proposal, as outlined in her affidavit filed on 11 November 2011, was very thoughtful of the children’s needs including their need to have a relationship with the father.
The mother displayed some generosity of spirit toward the father in her affidavits, commenting for example that she knew that the twins had been a joy to both her and the father.
I must have regard to the likely effect of any change in the children’s circumstances.
The father submitted that none of the orders he proposed would result in a change of circumstances for the children which would affect them adversely.
As for the surname, the children were too young to have identified with any particular surname.
As to the issues of time, the father submitted that the children had a good relationship with him and would cope with and indeed benefit from spending time with him as he proposed.
The mother submitted that her proposal about time during the Term 3 school holidays and concerning whether the children should spend additional time with the father should be preferred because it was best suited to the children’s needs given their ages. I will consider later in the judgment the weight I can place on the mother’s opinion about this.
I must next consider the practical difficulty and expense of the children spending time with a parent.
The father lives in Sydney and the mother at (omitted). The parties are thus about 3½ hours driving distance apart.
The paternal grandparents live at (omitted) which is about 20 minutes from the mother’s home.
There is nothing in the agreed orders, and no orders were proposed, proscribing where the father can spend time with the children. His current intention is to spend time with them on alternate weekends at the paternal grandparents’ home. This is sensible and in the children’s best interests given their ages, and it limits any practical difficulty and expense in the children spending time with him.
I must consider the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.
Both parents have the capacity to provide for the children’s day to day needs and their intellectual needs.
Both parents have some limitations in their ability to provide for the children’s emotional needs, which shows through when arguments erupt between them at changeover. I do not accept that one parent rather than the other bears all the blame for this occurring.
I must have regard to the children’s maturity, sex and background.
The children have only just turned 3.
No expert evidence was given at the hearing about age-appropriate spend time with arrangements for the children. However I consider that I should place weight on what the mother’s considers that children would cope with in terms of separation from her, for the following reasons:
(i)The mother is the children’s primary attachment figure; they have been with her day in and day out for the majority of the days of their lives.
(ii)The mother is a capable and insightful parent. The father was content to entrust the children to her care after they were born and the children have developed into healthy secure three year olds.
(iii)There was no sign that the mother was an unduly anxious parent or a parent who lacked the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. She has never sought to prevent the father spending time with the children and her decision to move to the (omitted) area showed a high degree of child focus.
(iv)It is reasonable therefore to find that the mother’s views about what is right for the children flow from a sound appreciation of their needs rather than from a desire to protect the children when no need for protection exists or a desire to unreasonably prevent the father spending time with them or to jealously guard her primacy as the decision maker.
I must have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
Insofar as each parent has always been keen to be part of the children’s lives they have each displayed a commendable attitude to the children and to the responsibilities of parenthood.
The mother showed a commendable attitude to the children and to the responsibility of parenthood when she decided to relocate to a place close to the paternal grandparents’ home rather than to see these very young children subjected to six hours of car travel each alternate weekend.
The mother is bitter about the father’s decision to give up work for two years, leading to him not being liable to pay any child support until at least February 2013 and probably to the end of 2013, but it was not put to the father during cross-examination that he had done this with a view to avoiding payment of child support and it is not open to me to find that this was the case.
I must have regard to any family violence involving the children or a member of the children’s family.
There were no allegations of family violence in the parties’ material. The father’s description during cross-examination and re-examination of some incidents which had occurred between the parties at changeover threw up an issue about family violence but (wisely) neither counsel sought to make anything of this during submissions.
There are no family violence orders.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
There are some troubling indications that the current proceedings between these parties could be the beginning of a long history of litigation rather than the parties first and only involvement with the court system.
There is no good will and considerable bitterness between the parties at present, which causes me to be concerned that contravention proceedings could too easily occur, and there are some signs of an emerging power struggle over the time each of them is to spend with the children which could lead to further applications for parenting orders.
There is a limit to what I can do to guard against this. The future is in the parents hands.
I must consider any other relevant fact or circumstance.
One relevant matter is that the mother is providing almost the entirety of the financial support for the children at present and will continue to do so until at least February 2013 and very likely until the end of 2013. The father is in receipt of Austudy and said that he had no plans to work part time while he was studying.
The father will be paying to feed, entertain and transport the children while they are with him, but they will be with the mother for the majority of the time.
The mother’s proposal that the father both pick up and drop off the children to save her the cost of travel would provide the mother with some small financial assistance and has much to recommend it.
The father’s alternative proposal that he give the mother petrol money would be demeaning for the mother and might well lead to further bitterness and resentment between the parties, something to be avoided at all costs.
A second relevant matter is that while the mother and father are obviously both good and decent human beings who have much to offer their children they do not have a good relationship at present and there is a deep undercurrent of bitterness running between them.
Answers the mother gave during cross-examination suggest that she is bitter about the fact that the father did not accept her assurance that he was the children’s father and insisted on paternity testing. It was also the flavour of her evidence that the father had forced her out of Sydney and back to (omitted) after the children were born, when (omitted) was a place she considered that she had moved on from, although the relocation seems ultimately to have suited her.
The mother is bitter and resentful about the fact that the father did not tell her prior to her moving to (omitted) that he had applied to give up work for two years, and that she is now faced with up to two years with no child support.
The father is bitter about the fact that it cost him so much to spend time with the children in (omitted) between September 2009 and November 2011 although this is hardly the mother’s fault. The fact that this is on the father’s mind showed through during his counsel’s cross-examination of the mother, and the father’s counsel gratuitously informed me from the bar table that the father had spent $40,000.00 on this travel.
The mother’s bitterness is not far below the surface and she spoke somewhat aggressively on occasions during cross-examination. The father was more quietly spoken but he eagerly seized upon every opening which presented itself to launch into a lengthy description of the mother’s alleged bad behaviour at changeovers.
The father could not see, as I could see, that even on his own version of events it was his behaviour as well as the mother’s which had contributed to the debacles at changeovers which he described.
The poor relationship between the parties has at least two implications for the orders.
One is that it would be preferable for the time being if either the parents did not come into contact with each other at changeovers or at the very least that they urgently attend a parenting after separation course which might give them some insight into the damage caused by exposing the children to conflict.
The other is that I need to ensure that I do not make orders or notations which result in no demonstrable benefit for the children and only give further reason for the parties to feel bitter toward the other.
Parental Responsibility
The parents agreed on an order for equal shared parental responsibility. This is a case in which the presumption in s.61DA of the Family Law Act applies and I will make that order.
Conclusion
The first issue in dispute between the parties was about whether the children’s surname should be changed so that the father’s surname became part of the children’s surname.
The father’s counsel submitted that the father was not be obliged to show a compelling reason for change, rather the mother was obliged to demonstrate some good reason why the surname should not be changed.
I do not accept this. Neither party bears the onus of establishing their case. I must make a decision treating the children’s best interests, for reasons given earlier, as the paramount consideration.
There are many decided cases about the issue of a change of surname, and the father’s counsel referred me to the 2001 case of Flanagan & Handcock[5] in which the Full Court considered a number of those cases.
[5] Flanagan & Handcock (2000) FLC 93-074
The father’s counsel submitted that one of the propositions that could be distilled from the cases referred to in Flanagan & Handcock was that where a father had a meaningful relationship with his children they should unless there was a clear contra-indication bearing on their welfare bear his name.
He also suggested during questioning of the mother that there was some expectation in Australia that children would bear their father’s surname.
I do not accept that the proposition to which the father’s counsel referred can be distilled from the decided cases nor do I accept that there is an expectation in 21st century Australia as he suggested.
The preamble prefacing the question about the child’s surname on the Birth Registration form in use in NSW runs counter any such suggestion.
To my mind the significant statement in Flanagan & Handock is the following:
The matters which frequently need to be considered in deciding whether or not to permit or prohibit a change of name have been considered in several decisions of this Court, both at first instance and on appeal. The most significant feature that appears from those cases is that they turn on their individual facts.[6][my emphasis]
The more persuasive arguments in favour of the children’s surname being changed are the following:
·The father is an involved father who will continue to spend regular time with his children.
·The inclusion of the father’s surname in the children’s own surnames will make the children’s connection with their father and paternal grandparents obvious to the world.
·The children are too young to have identified with a surname and changing their surname will have no impact on them.
·The mother would only need to complete a small number of administrative tasks to authenticate the change.
There are also persuasive arguments however in favour of not changing the surname.
As the mother’s counsel pointed out, this is not a case where the mother failed to name the father on the children’s birth certificates and rode roughshod over him by giving the children her surname. The parents agreed on the surname prior to the children’s birth and carried their agreement into effect after paternity was established.
The facts in this case contrast with those in Ryan & Burnett, which also involved a three year old and in which a hyphenated surname was ordered. In that case the father complained that the mother had registered the child as “Ryan” without any consultation with him.
X and Y were christened using the surname Scaife in 2010 and the father did not raise the issue of a change of surname with the mother until about September 2011 when the children were over two years old.
The mother has always properly valued the father’s role in the children’s lives and facilitated the father spending time with them The dispute between the parties in 2011 was not about whether the father should spend time with the children but about whether the children should travel six hours each alternate weekend for that time to occur. The mother dealt with her concern about this in a way which facilitated the father spending regular time with the children in a manner less burdensome to the children.
There was absolutely no evidence that a change of surname was needed in order to enhance the children’s relationship with the father or the paternal family or to prevent the children being confused about their identity.
The flaw in the argument that a child needs to have a parents surname as part of theirs in order to prevent a confusion about identity or cement a relationship with a parent is readily exposed when one considers that no-one would dream of suggesting that the millions of Australian children who were given their father’s surname in 19th and 20th centuries had as a result a less than satisfactory relationship with their mother and their maternal extended family or were confused about their identity.
I accept that the father is not estopped from agitating for a change to the children’s surnames simply because he agreed to the name Scaife in 2009, but I do not consider that I should change the children’s surname just because I can. The parents agreed on the surname three years ago after giving the matter their earnest consideration. Nothing has happened since then which suggests that changing the surname is necessary to advance the children’s welfare.
I intend to dismiss the father’s application for a change of surname.
The second issue in dispute was about the time the children should spend with the father during the Term 3 school holidays.
I preface this and indeed my conclusion about all the other disputes concerning the children’s time with the parents by acknowledging that I have made an order for equal shared parental responsibility and that I am therefore required by s.65DAA of the Family Law Act to consider whether I should make an order that the children spend equal time or substantial and significant time with each parent.
Neither parent sought equal time, and it would not be in the children’s best interests given their ages, the fact that the parents live too far apart for it to be practical, and the fact that they parents do not have a good relationship and a demonstrated ability to communicate effectively.
Neither parent sought substantial and significant time in so many words, but the orders to which they agreed evince a general intention to ensure that the children spent the maximum time with the father which was consistent both with the practicalities of where the parties live and the children’s ages.
The father’s argument concerning the Term 3 school holidays must be considered against this background.
I intend to order that the block of time commence on Saturday at 9.00am as the father proposed and end at 5.00pm on Thursday, rather than go from 12 noon to 12 noon as the mother proposed. The mother did not give any cogent reason for why her proposal should be preferred.
As for the father’s argument about the additional weekend, the parties agreed on a general clean break between holidays and term time when drafting their orders and I do not intend to upset this by making an order that in these holidays alone the father also have weekend time during the school holidays.
For the avoidance of doubt I intend to make an order defining when school holidays begin and end, to head off a not uncommon argument about whether school holidays begin at the conclusion of school on the last day of the school term or on the following Monday, which is the gazetted day for the commencement of school holidays.
The father sought an order that school holiday periods commence at midnight on the last day the children attend school and end at midnight on the last day before the children resume school. He did not explain why he had made that unusual proposal.
The parents agreed that all time during the shorter school holidays should commence on a Saturday and end on a Sunday and I will make an order encapsulating that. There appeared also to be general agreement that time during the Christmas school holidays should commence on Saturday and end at 5.00pm on the day before school resumed and I will also make an order encapsulating that.
I next need to consider how time should be configured during the Christmas school holidays.
In the end the father suggested that during the 2012, 2013 and 2014 Christmas school holidays the children should spend week about with each parent and the mother agreed to this in principal, but the holidays are not six weeks long they are five weeks and two or three days long and there was no evidence that either party had considered this aspect of the matter.
If the children’s time is to be divided equally between the parents, which was the parents’ eventual basic agreement, logic suggests that time during the 2012, 2013 and 2014 holidays should be divided 6 days about rather than 7 days about. I have drafted orders which provide for this.
The result of a 6 day about division is that the mother will have two additional days at the end of 2012 and 2014 and the father some additional days at the end of 2013.
There might well have been other ways to solve the problem of the actual length of the holidays. If one wanted to be really pedantic one could give each parent one 7 day block and two 6 day blocks but I am simply not prepared to go there. I rather suspect that the solution I have adopted will suit neither parent, but I have done the best I can with the proposals put before me. The parents can discuss and try to agree on a variation if they wish to do so.
A further complication is whether some provision should be made for the father to spend time with the children on Christmas Day in 2013.
The mother was concerned that an order which required time to be shared on Christmas Day might result in excessive travel on the children. She has no family in the (omitted) area and envisages travelling to (omitted) for Christmas. She said that her family normally had a big family Christmas in (omitted).
The father sought to do away with these concerns by saying that he would travel to the mother’s locality to spend time with the children if necessary.
If the father does this however he would be spending time with the children in a motel room or in public places and it is open to question whether this proposal is more about the father’s needs than the children’s.
I am not convinced that the children’s best interests required me to make the order sought by the father about Christmas Day in 2013 or any other year and if the mother does not consent to it I do not intend to make it.
I intend to make the orders referred to earlier about the 2012, 2013 and 2014 holidays and order a clean half/half division of the Christmas school holidays thereafter.
The mother said during cross-examination that in any year the children were to be with her in the period which included Christmas Day she would be content for the father to spend a few days with the children between the conclusion of school and Christmas Day.
The father would no doubt prefer this to not seeing the children between the conclusion of school and his first period of time with the children, but neither party reduced this proposal to a minute or suggested how it should be worked in with the otherwise clean division of the holidays into periods of equal length between them.
It is simple not possible for me to make a decision about how time during these holidays should be evened up if the father has a few days before Christmas in the years the mother has the children for the first half of these holidays.
The next issue was whether the children should spend six periods of five days with the father on specified dates in November 2012, December 2012, February 2013 (twice) July 2013 and December 2013.
I have no expert evidence in this case about what is age appropriate for children, but for reasons given earlier I consider that I should place weight on the mother’s opinion about this.
The mother has deliberately chosen not to work on Monday and Friday in order to break up periods when the children are away from her for the day and periods when they were not, and I place weight on her opinion that the proposal by the father, which would see a period of 10 days where the children were continuously either in day care or with the father, would not be in their best interests.
I also observe that the effect of the father’s proposal during 2012/13 would be that these three year old children would effectively be living in a week about arrangement with their not particularly friendly or cooperative parents for a period of three months rather than just for the 5 plus weeks of the Christmas school holidays. I am unconvinced that this would be in the children’s best interests.
Indeed I have some concerns about the whether equal time during the forthcoming Christmas school holidays is appropriate at the children’s current age, but the mother agreed to this and for that reason I will make that order.
I intend to dismiss the father’s application for the additional time.
I must consider the issue of how changeovers should be done.
There is merit in the mother’s proposal that the father should be responsible for both picking up and dropping off the children while he is not paying child support.
For some reason not fully explained it appears that the father intends to use the paternal grandparents to assist with changeovers. The paternal grandmother confirmed her willingness to assist and I note that mother’s proposal will require far less of the paternal grandparents than the return trip between (omitted) and (omitted) which they were willing to undertake to facilitate the father’s original proposal.
The paternal grandmother was concerned that unpredictable future events such as health issues might make things difficult sometimes but any difficulty can be overcome by providing that the father or his nominee do the pick up and drop off.
The father’s alternative proposal of giving the mother petrol money would be demeaning for the mother and I do not intend to order that.
There is some merit in the mother’s proposal that the father should not be present at changeovers, but it is easy to understand the father’s resentment at the suggestion that he should be the one who is made to stay away from changeovers when the conflict is not solely his fault.
These intelligent adults are going to have to learn to be in the same place at the same time without conflict at some point. In the not too distant future the children will start school, and they will have school concerts and assemblies. They will probably play sport. The parents will need to be in the same place at the same time on numerous occasions during the next ten or fifteen years.
The parents have been able to manage most changeovers without conflict and I do not intend to order that the father stay away from changeovers. I will however order that each parent complete a parenting after separation course, if possible within six months. That course will reinforce to each parent the damage caused to children from being exposed to conflict between their parents, and I hope against hope that this will have the necessary effect on the parents’ behaviour.
The next issue I need to consider is whether an order should be made restraining the father from attending at the children’s day care centre/pre-school save for picking up and dropping off the children, attending special events and dealing with emergencies, with the same to apply to the mother.
The father said through his counsel that all he wanted was to be able to do to visit the centre from time to time to speak to staff to see how the children were doing. He said that he did not intend to visit the centre for the purpose of spending time with the children and his counsel submitted that no order was required.
However while the father said that he did not intend to visit to the centre to spend time with the children on two occasions earlier this year when he visited the centre this in fact occurred. The mother claimed that this was unsettling for the children. The father disputed this but there was no independent evidence to assist me to resolve this dispute. There was also no independent evidence about the policies and preferences of the day care centre.
The children are enrolled at the centre because the mother is working. She needs to do so as she is currently providing the majority of the financial support for the children and will be until they commence primary school. It is important that the mother be able to go about her work untroubled by worries about what might be happening at the day care centre, a service for which she is paying.
At the very least common courtesy would require that the father notify the mother prior to attending at the centre so that she is not taken by surprise by anything the children might say or do when they arrive home that evening.
I am not convinced that the father would provide such notification to the mother without an order and I am not convinced despite his current expression of intention that he might not spend some time with the children at the centre if the opportunity presented itself when he went to the centre to talk to the director.
There was no clear evidence that it would be detrimental to the children if this occurred, but in circumstances where the parties have a poor relationship, have differing perceptions about how such random visits affect the children and where I have no independent evidence about the preferences of the centre I consider that it would be in the children’s best interests that I make the order proposed by the mother, subject to one proviso.
Given that the there are pre-school activities conducted at the centre however the father should be allowed to attend at the centre once each quarter to speak to the director provided that he gives the mother 7 days notice of his intention to do so, because sometimes face to face conversation can supply more information than a written report or even a telephone conversation.
I finally have to decide whether to add the notation proposed by the father about the mother being restrained from placing pictures of and information about the children on her Facebook page.
It is questionable whether asking the court to make a notation signifying the mother’s consent to something she does not in fact consent to is the right way to deal with the problem which the father perceives in the mother’s use of Facebook but I will leave that aside and consider whether the father has demonstrated that there is a problem which needs to be dealt with at all.
The father speculated that the mother’s use of Facebook might place the children at risk but he did not produce any evidence which established that this was likely to be the case.
The mother perceives no difficulties with her activities and clearly enjoys using Facebook as a means of keeping in touch with friends and family. She has moved away from her previous location for the benefit of the children. She is a loving and capable parent who I am sure would not willingly put her children in harms way. I do not intend to make a notation or order which might cause resentment and thus further worsen the parties’ relationship when no clear need for it is demonstrated.
The mother’s counsel indicated at the commencement of the hearing that the mother would consent to a notation that she would respect the children’s privacy on social networking pages but I am not prepared to make that notation when neither party gave evidence about what they understood it to mean. They may well have very different views about that and making the notation would then not only be unproductive but would also very likely lead to further conflict.
I am concerned about some of the proposed consent orders for this same reason. Orders (8)(iii)(f) & (g) for example place a heavier than normal obligation on each party to provide information to the other and could be open to differing interpretation as to the extent of the obligations imposed. There is a real risk that if relations between the parties deteriorate further orders such as these could be fertile ground for contested contravention proceedings, with issues being raised not only about compliance but about the construction of the orders.
I will, with some reluctance, make the orders however because the parties asked me to, but if contravention applications follow it may be necessary to look at varying the orders.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 30 July 2012
0
1