Goode & Goode (No.2)

FAMILY COURT OF AUSTRALIA

GOODE & GOODE (NO. 2)

[2007] FamCA 315

FAMILY LAW – CHILDREN – Interim parenting arrangements – Presumption for equal shared parental responsibility does not apply – Interim order for equal shared parental responsibility made – Where children’s living arrangements have continued for about nine months – Orders made which substantially maintains existing circumstances – Where minor variations do not create uncertainty concerning the effect upon the children to changes in their circumstances

Family Law Act 1975 (Cth) s 60B, s 60CA,
ss 60CC, 60CC(b), 60CC(1), (2), (3)(b), 3(c), 3(d), (3)(e), (3)(f), (3)(g), (3)(i), (3)(l), (3)(m), (4), (4A), (4)(b)(i),
ss 61DA(1), (2), (3)(d), (3)(m), (4)
s 65DAA, ss 65DAA(1)(a), (1)(b), (2), (3), (4), (5), s 65E

Goode and Goode (2006) FLC 93-286
B v B: Family Law Reform Act 1995 (1997) FLC92-755

APPLICANT:

MR GOODE

RESPONDENT:

MRS GOODE

FILE NUMBER:

PAF

7969

1999

DATE DELIVERED:

21 February 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

21 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Watts McCray

SOLICITOR ADVOCATE FOR THE RESPONDENT:	Mr Brown
SOLICITOR FOR THE RESPONDENT:	Browns Family Lawyers

IT IS ORDERED PENDING FURTHER ORDER:

That all prior parenting orders concerning “the children”, T born in November 1997 and J born in April 2004 are suspended.
That Mr Goode (the applicant father) and Mrs Goode (the respondent mother) shall have equal shared responsibility for the children.
That the children shall spend time with the father as follows:
a)Each alternate weekend from the finish of school or day care on Friday until 4.00 pm Sunday.
b)For J, during school term each alternate Monday from the finish of day care until 6.45 pm or the time T starts Scouts whichever is the earlier.
c)For T during school term each Monday from the finish of school until 8.30 pm in which time the father shall take T to Scouts.
d)For T during school term from after school Tuesday until 8.15 pm or the finish of piano lessons, whichever is the earlier, in which time the father shall take T to piano lessons.
e)For the first half of the end of terms 1 and 3 New South Wales school holidays.
f)For the second half of the end of term 2 New South Wales school holidays.
g)Each alternate week during the Christmas school holidays, commencing with the first week in 2007 and the second week in 2008.
h)On the weekend which includes Father’s day for the same duration as subparagraph (a) of this order.
i)In odd numbered years, from 5.00 pm on Diwali until 5.00 pm the next day.
j)In even numbered years, from 5.00 pm the day preceding Diwali until 5.00 pm on Diwali.
k)On each child’s birthday. If it is a school day from after school or pre-school until 6.00 pm and if it falls on a weekend or during school holidays from 10.00 am until 2.00 pm.
l)By telephone between 5.00 pm and 5.30 pm daily.
m)At such other times as the parties agree.
That during school holidays, orders 3(a) to 3(d) above are suspended.
That school holidays commence on the last day of classes and finish on the Sunday before classes resume.
That the father’s time with the children shall be suspended as follows:
a)Commencing from the finish of school and day care on Friday for the entire Mother’s Day weekend.
b)If either child’s birthday falls during school holidays or on a weekend, from 10.00 am until 2.00 pm.
c)In even numbered years, from 5.00 pm on Diwali until 5.00 pm the next day.
d)In odd numbered years, from 5.00 pm the day preceding Diwali until 5.00 pm on Diwali.
While the children are in the father’s care, the mother may speak with them by telephone between 5.00 pm and 5.30 pm daily.
That while the children are in the mother’s care she is responsible for making decisions concerning their day to day care.
That while the children are in the father’s care he is responsible for making decisions concerning their day to day care.
Other than those occasions when changeover takes place at school or day care, the mother shall deliver the children to the father at his home at the beginning of his periods with the children and after periods when, because his time with the children is suspended and the children have returned to her for a special occasion, and the father shall deliver the children to her at her home the end of his periods and on special occasions when his time with the children is suspended.
Other than as ordered by these orders the father’s Amended Application in a Case filed 12 February 2007 is dismissed.
Other than as ordered by these orders the mother’s Amended Response to an Application in a Case filed 16 February 2007 is dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAF7969 of 1999

MR GOODE

Applicant

And

MRS GOODE

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is an application for interim parenting orders concerning the parties' two children, T born in November 1997 and younger son born in April 2004. Since separation the children have lived with their mother and spent time with their father. Basically T has been in the father’s care each Monday and Tuesday afternoon and early evening and both children have been in his care each alternate weekend from after school or day care Friday until 4.00 pm Sunday. During school holidays T has divided his time equally between his parents and both children lived week about with each parent during the last three school holidays. At all times since separation the father has wanted the children to divide their time equally between their parents. The mother has opposed this course and the arrangements summarised above have basically been the arrangements she has insisted upon. The mother wishes to maintain the existing arrangements pending a final hearing.

Short history

The applicant father, was born in Kenya in April 1967.
The respondent mother, was born in Uganda in April 1969.
The parties met in the United Kingdom and commenced cohabitation upon their marriage in July 1996.
In March 1997 the parties migrated to Australia where they have lived ever since. The following week the father’s parents arrived in Australia. Upon their arrival and until about January 2000 the parties lived with the father’s parents.
T was born in November 1997.
In late December 1999 the parties separated for the first time. At separation the mother left the family home, taking T with her. By agreement, the father collected T on 31 December 1999 so as to spend time with him. That same day the father commenced proceedings in this Court and retained T. Within approximately one week, the parties reconciled and the mother returned to the family home. Not long afterwards, by agreement, the father’s parenting application was withdrawn and dismissed.
J was born in April 2004.
In May 2006 the father told the mother that their marriage was over. The same day he left the family home and moved to his parents' home. The children remained in the mother’s care in the family home.
On 26 May 2006 the mother filed in this Court an Application for Final Orders.
On 30 May 2006 the father filed his Response and an Application in a Case seeking interim parenting orders.
Notwithstanding the father’s request to see the children sooner, on 9 June 2006, the mother first allowed the children to see their father.
On 10 August 2006 the father’s interim parenting application was heard and interim orders made. These interim orders are set out below.
(1)That pending further order the children, [T], born [in] November 1997 and [J], born [in] April 2004, live with the mother.
(2)That the children spend time with the father as follows: each alternate weekend from the conclusion of school or childcare on a Friday to 4.00 pm on Sunday. In addition in relation to the child, [T], on Monday in each week during school terms from after school to 8.30 pm for the purpose of attending scouts, and on Tuesday from after school until 6.00 pm for the purpose of piano lessons. The next weekend of contact shall be in accordance with the present arrangement of weekends.
(3)That the children spend time with the father during each school holiday period for one half of each period in respect of each child being, if the parties cannot agree, the first half in years ending in an odd number, and the second half in years ending in an even number.
(4)I grant liberty to either of the parties to restore the matter upon 72 hours notice in respect of any implementation or further orders required to do justice to the situation.
(5)I stand this matter over to the Registrar's duty list on Tuesday, 29 August next for directions.
(6)I direct that Mr Brown file any amended application in respect of parenting and/or children's issues within seven days of today's date.
On 15 December 2006 the Full Court of the Family Court allowed the father’s appeal against the orders made 10 August 2006 and remitted his application for interim parenting orders for rehearing. This is that rehearing. During the interregnum, with few changes, the children’s living arrangements continued in accordance with the 10 August 2006 orders.

The father’s circumstances and proposals

On 12 February 2007 the father filed an Amended Application in a Case which sets out the orders he seeks. I incorporate the interim orders sought in his Amended Application into these reasons. Simply put, the father proposes that during school term the children live with him each alternate week from after school or day care Friday to the commencement of school or day care on Wednesday and each other week from after school or day care on Monday to before school or day care on Wednesday. School holidays will be shared equally with adjustments made to accommodate special occasions including, for example, Father’s and Mother’s Days, Diwali and the children’s birthdays.
Since separation the father has lived with his parents at T. The father’s parents, moved into their home in 2001. This is a six-room home in which three rooms currently serve as bedrooms. For the foreseeable future the father will live with his parents and this is where the children will live when with him. T has always had a bedroom in his grandparent’s home which he identifies as his. The home is a comfortable family home with an enclosed backyard where the children can play. It affords an adequate level of accommodation for the children while in their father’s care.
The father is general manager of a family business known as “[C] Pty Ltd.” This is a food supply business which the father and his parents have operated at least since T's birth. During cohabitation the father says he worked in the business Monday to Friday, starting between 6.00 am and 9.00 am and finishing between 2.30 pm and 4.30 pm. The mother agrees the father’s hours varied but says his basic hours were from between about 5.30 am to 6.00 am until approximately 5.00 pm. The parties agree the father rarely worked weekends. The paternal grandparents worked approximately the same hours as the father. Since separation the father has changed his work arrangements. On Monday and Tuesday he leaves work at 2.30 pm and collects T from school at 3.00 pm. Each alternate Friday he leaves work at 2.30 pm to collect the children from school and day care. On those weekdays when the children are not with him, the father is usually still at work between 5.00 pm and 5.30 pm. The father says he is able to make further changes to his work arrangements as are necessary for the future care of the children. However, during school holidays on the weeks the children have been with him, he has needed to attend work. Although the children have been in his care, the father has not been able to reduce his working hours below between 12 and 16 hours each week. While the father has been at work his parents have cared for the children.
T attends J Public School at B. This is approximately 2.4 kilometres from the father’s parents' home. J attends day care Monday, Thursday and Friday at N Child Care Centre. J’s child care centre is 2.6 kilometres from the father’s parents' home. Whilst the children are in his care, the father proposes J will continue to attend the same day care at the frequency he presently attends. The father proposes that either he or his parents will deliver the children to school or day care on those mornings the children live with him. In the afternoons the father will collect J from day care and T from school. On Tuesdays, if possible, the father will work shorter hours or not at all. If he must work, his mother will care for J.
Prior to separation the parties agreed that the children would be raised as Hindus in accordance with the Bhagavad-Gita. They also agreed T, and presumably also J, should be familiarised with Christianity. T has been attending Anglican scripture classes at school. Since separation the mother has been taking the children to temple at R and A. The father sought to restrain the mother from taking the children to temple where the devotees follow another path of the Hindu faith. During the hearing the parties resolved this issue and an injunction was made the effect of which is that the children will only attend temple at A This addresses the father’s concern that subsequent to separation the mother has involved the children in a type of religious practice which during cohabitation it was agreed they would not.
For the first five months after separation the father paid the mother $2000 per month for her and the children's needs. Since November 2006 he has paid child support of $765.12 per month. At the father’s direction, his father is paying the mortgage over the former matrimonial home of approximately $2163 per month. I do not know whether the house payment is directed from drawings to which the father is entitled or is drawn from some other funds. The mother has use of a company car provided by C Pty Ltd.

The mother’s circumstances and proposals

The mother lives with the children in the former matrimonial home at L. This is a four-bedroom family home in which the parties and children lived since June 2001. The mother does not have members of her family in Australia. Two of her married sisters have applied for residence visas and hope to migrate to Australia later this year.
The mother is an accountant presently working as a part-time accounts assistant with R Company at C. Shortly before T’s birth the mother stopped working with C Pty Ltd. She did not work outside the home from T’s birth until he was two years old. During this period the mother stayed at home and was fully involved in T’s care. During the day when the father’s mother was not at work, the mother received some assistance from her with T’s care. When the father was not at work he complemented the mother’s care of T. When T turned two the mother began working one day each week in the family business. Occasionally she worked two days. Whilst the mother was at work the father’s parents cared for T. After the parties reconciled in January 2000 the mother obtained part-time work as an accounts assistant in the Sydney CBD. Initially she worked two days a week, which increased at some point to three days per week. The mother does not challenge the father’s evidence that she started work at 9.00 am and finished at 5.00 pm. Added to this, is her travelling time to and from the Sydney CBD. The mother does not agree that she "commenced work three or four days per week" and is silent on the contention that during busy times she occasionally worked at home for between two and four hours in the evening.
When the mother started part-time work T was enrolled in child care. He attended on Mondays and Wednesdays from 8.00 am until 12.00 noon. The mother delivered T to child care on her way to work. The father’s parents collected him at noon and cared for him at their home until the father returned from work between 3.00 pm and 4.00 pm. The initial enrolment in child care two days per week tends to support the mother’s evidence that initially she worked two days per week rather than three. However, there is no doubt that at some stage, and it appears quite quickly, she increased her working days from two to three each week and that on those days when T was not in child care, he was primarily cared for by his paternal grandmother with input from the father as set out in paragraph 15 of his affidavit. The father’s evidence that the mother worked "three or four days" with this employer does not give any indication of the frequency with which he says the mother worked four days a week. Having regard to the totality of the evidence on this issue, it appears that there was a prolonged period when the mother worked three days per week and there may or may not have been an occasional fourth day. I cannot determine the frequency with which there was a fourth day, the issue being disputed.
T changed preschools in January 2001 and thereafter attended on Mondays, Tuesdays and Fridays each week between 9.00 am and 1.00 pm, which at some stage was extended to 3.00 pm. The arrangement appears to have been that the mother took T to preschool or day care and the father or his parents collected him in the afternoon and cared for him until the father took him home to the parties home between about 6.00 pm and 6.30 pm. In February 2003 T started school at a local state school. The mother took T to school in the mornings and on those afternoons when she was not working collected him from school in the afternoon. On those days when the mother was working, either the father or his parents collected T from school and cared for him at the father’s parents' home until the mother arrived home from work.
The mother commenced maternity leave in early 2004 which lasted until April 2005. During this period the mother was fully involved in J’s care. She does not challenge the father’s evidence that during school term, one or two afternoons after school, the father’s parents collected T and cared for him until the father returned from work between 3.30 pm and 5.00 pm. The father then took T home to the parties’ home.
The mother returned to paid work in April 2005. She says that on the day she returned to work she was made redundant and other than for two weeks in July 2005 did not work outside the home until August 2005. The father says the mother started work, with I infer her current employers, three days per week in April 2005. However, on the basis he conceded the information contained in a letter from R Company dated 8 February 2007, the mother withdrew her reliance upon it. As a consequence, it follows that the father concedes the mother commenced her part-time three days per week work 17 months ago. This is August, not April 2005. When the mother commenced work with R Company she worked three days per week for a total of 12 hours during school hours. Whilst with R Company when the children have been with her the mother has not worked during school holidays. Similarly whenever one of the children has been ill she has stayed home with the sick child. Other than one week in April 2006, when T was hospitalised with meningitis and the father cared for J while the mother remained in hospital, there is no evidence that during cohabitation the father took time from work to stay home with the children when one or other was ill. I infer he did not.

The relevant law

The parties agree that the governing law is contained in the Full Court’s decision in their appeal. See Goode and Goode (2006) FLC 93-286. There the Full Court held:
“Section 60CA deals with the best interests of the child and provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.
In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)       the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent        or other relative of the child), with whom he or she has been       living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)        the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative    of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)       has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)       has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
Concerning the amendments to Part VII the Full Court explained that they have the following effect:
“Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)       the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
The child’s best interests remain the overriding consideration.”
And also:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”

Determining the children's best interests

The parties agree it is important the children have a meaningful relationship with both of their parents. Each acknowledges that the other presently enjoys a close, loving and meaningful relationship with their children. The father alleges that unless the amount of time he spends with the children is increased along the lines he proposes, during the 12 months it is agreed before this case will be called on for a final hearing, his relationship with the children may lessen to such an extent it could no longer be described as meaningful. The mother challenges this assertion. She points out that she proposes a continuation of arrangements which have basically existed since 9 June 2006. If it was the case that the amount of time the children have subsequently spent with their father and which she proposes continues is insufficient to promote and ensure their meaningful relationships with him, already there would be signs their relationships were diminishing. As neither party suggests there has been any diminution in the children's relationships with their father post-separation, she says the father’s claim lacks proper evidentiary foundation. I agree.
There is no dispute that following T’s birth and until the parties separated the father worked full‑time and that the mother was either at home caring for the children on a full‑time basis or she worked part-time. When they were not at work, both parents were involved in the children's care and each party competently contributed to the children's physical and emotional wellbeing and care. Having regard to the parties' paid employment prior to separation, the mother was significantly more responsible for the children's day-to-day care than the father. This is a finding to which I attach considerable weight. When the father was at home or at his parents' home with T and whilst the mother was at work, he was actively involved in the children's care. His care complemented the mother’s care when she was not at work. Until separation the father was involved in the children's daily lives and no doubt his presence and involvement in their daily care contributed to the quality of their relationships with him. Since separation the changes made to each party's involvement in the children's care does not appear to have affected the children's relationship with either party. I accept both parties' essential premise that the children can only benefit from an outcome which gives them a meaningful relationship on a continuing basis with both of their parents.
Both parties raise issues concerning family violence. From the outset the mother described a marital relationship marred by episodic family violence. The mother does not assert that her evidence concerning family violence is relevant to the amount of time the children should spend with their father or the conditions under which he should see them. Its relevance appears to lie in the application of the equal shared parental responsibility presumption and to shed some insight into the parties' post‑separation relationship. The father denies the mother’s family violence allegations. In his affidavit filed 12 February 2007, for the first time in these proceedings, the father alleges that during cohabitation the mother was violent to him. He explains his failure to mention family violence in his earlier affidavits on his belief that the mother’s violence is not relevant to the amount of time she should have with the children or any other parenting issue. The mother denies the father’s domestic violence allegations. I am unable to come to any conclusion concerning the veracity of the parties' allegations concerning family violence or their denial. Adjudication of this issue, if it remains an issue, must await a final hearing.
There are no allegations of family violence post-separation. It appears that whatever the situation was during cohabitation, on both parties' evidence, separation has brought an end to family violence. This is in the context of frequent contact between the parties. In these circumstances I am satisfied that while the parties are separated there are no protection s 60CC(b) issues which the Court must consider. I will return to the issue of family violence when considering the application of the equal shared parental responsibility presumption.
I turn now to the additional considerations which must be considered.
By s 60CC(3)(a) the Court must consider the children's views. The mother deposes that T has told her that he wants to be with her after school and wishes that she would collect him from school. She says that on quite a number of occasions he has been distressed and sobbing when making these remarks to her. The father says that on Sunday afternoons J cries and in effect says he wants to stay. J’s distress spills over to T and at return time on Sunday afternoons T also becomes distressed. These remarks and behaviours by the children may be indicative of views the children hold concerning the outcome of these proceedings. However, it is not clear that T’s stance is constant or that he has the maturity or level of understanding required to evaluate his parent’s competing proposals. At this stage I am not satisfied I know enough about T’s views to give his statements any weight. J is too young to understand the parties' competing proposals. Such views as he may have carried no weight.
Section 60CC(3)(b) is an important provision. It deals with the children's relationships with their parents and, in this case their paternal grandparents. It seems plain from the parties' affidavits and underpins both sets of submissions that the children have good, strong and healthy relationships with both of their parents. The mother was at home caring for the children on a full-time basis while they were babies and as I have found, had greater involvement with both children in these years. Since then the difference in the parties' work arrangements, even after the mother returned to paid employment, has meant that she has had a greater involvement than the father in the children's day to day care. There is no challenge made to the competency of her care. The combination of these factors tends to suggest that the children are likely to be primarily attached to her. The significance of primary attachments is more acute for younger children than it is for older children. In this case this is a finding of greater significance to J than it is for T. With T, the quality of his relationship with his father and his father's substantial involvement in his care, combined with his age makes the significance of the mother’s greater involvement in T’s earlier years less important than it is for J. This is a factor of age and maturity. When one stands back and examines the patterns of care in the fashion I have earlier outlined, although the father’s role in the children's lives has been significant, it does not have the same constancy and centrality to the children’s day-to-day lives as their the mother’s care has enabled. This is a finding to which I attach significant weight.
Until the parties separated, at which time J was approximately two years old, he had very little contact with his paternal grandparents. Indeed it appears he may have had contact with them on only a couple of occasions. It follows that their relationship with him has been established post-separation, during which period it appears to have flourished. There seems no challenge to the gravamen of the father’s evidence that with the time that J has spent with his parents since 9 June 2006, J’s relationship with them has become a happy and companionable relationship. I infer these relationships will continue to develop provided the amount of time J spends with his grandparent’s is maintained. T’s relationship with his paternal grandparents is more substantial. As I have earlier found T lived with his paternal grandparents for a number of years. During that period his grandparents were part of his daily life and supplemented his parents' care. Since separation T has spent more time with his grandparents than J and his relationship with them is strong and loving. Provided T continues to spend time with his grandparents along the lines of that which has been in place since 9 June 2006, I infer his relationship will maintain its strong foundation.
Section 60CC(3)(c) concerns the willingness and ability of the parties to encourage a close and continuing relationship between the child and other parent. This issue did not loom large in the hearing. The father gives evidence that in the two weeks after separation the mother refused his request to see the children. Having regard to his retention of T on 31 December 1999, I do not consider that her refusal to give him the children until these proceedings were under way and she was confident about the children's return was unreasonable. It is not a proper basis upon which to make an adverse s 60CC(3)(c) finding. The father submits that the mother’s refusal to allow J to spend the first post-separation school holidays with him is indicative of her inability to promote a close and continuing relationship between he and their youngest son. The mother’s stance was based on her assessment of a developmentally appropriate arrangement for J. It could not be said that her stance was plainly unreasonable and I am not satisfied that I should make an adverse finding pursuant to this subsection. No criticisms of a similar nature are made against the father. Considered in its entirety the evidence, particularly that concerning regular movement of the children between the parties’ homes supports a finding that since separation both parties have promoted the children’s relationships with their other parent.

Section 60CC(3)(d) concerns the likely effect of any changes in the children's circumstances and is a pivotal issue. The father’s counsel submits that the children’s experience with week about school holiday living arrangements provides evidence that his equal time application will work well. Consequently that the effect of his proposed changes upon the children will be positive. This submission does not acknowledge the difference in the children's routine during school term compared to school holidays. Or that during school term the father proposes the children move not twice but four times each fortnight. These differences are significant and very important.
During school term, as well as coping with school, after school T:
·attends Scouts on Monday;
·piano lessons on Tuesday;
·carries a full tutoring program study load and attends a tutoring program study class on Wednesday;
·on Thursday has swimming practice at N; and
·during the cricket season he has cricket practice at K.
On Saturdays T plays cricket during the season at 8.30 am and on weekends he also has occasional Scouts activities. As well as attending school, T has school homework and practices piano. If piano classes do not continue during school holidays, piano practice probably does.
During school term J attends day care on Mondays, Thursdays and Fridays. Since February 2006, at 10.00 am on Tuesday the mother has taken J to swimming lessons at N. On Wednesdays at 9.25 am J attends a children’s music class at a private Music School. This is where T studies piano. It appears that J accompanies his mother and T while T attends his tutoring class.
T has a rich and full life. It is also demanding. Overloading his school weeks with four substantive changes in homes every two weeks potentially expects more of this child than is reasonable in terms of the strain so much change may involve. Presently he appears to be coping with his numerous extracurricular activities, with school and moving between his parents' homes. The experience since 9 June 2006 suggests that the current arrangements during school term strike a balance between giving T sufficient time with his parents and his grandparents so as to maintain meaningful relationships with them, enabling him to manage school and his extracurricular activities which both parties want him to continue, without requiring more of him than he may be able to cope with. If T is overloaded, there is a risk his ability to cope with and enjoy his life and importantly his key relationships may be compromised. After nine months when, the existing arrangements are apparently working well from the child's perspective, I would be concerned about imposing further change on him without greater certainty, perhaps including expert evidence that the effect of such a change would overall be positive.
I make the same findings in the sense of J’s ability to manage not his education, but his activities and key relationships whilst maintaining a balanced life. Concerning J, I am concerned about imposing further change without the benefit of expert evidence as to the effect of the father’s proposed changes upon him developmentally. Linked to this is the effect on J of reducing by half the amount of time he spends with his mother during school term. It is submitted that the fact that he coped week about during the recent two school holidays suggests he may emotionally manage regular separations from the mother. However, an important distinction is that is that the holiday week about arrangement appears to have been successful over one two week period and one six week period. At both ends of these occasions J has been substantially in his mother’s care. The post June 2006 arrangements have not tested the potential effect on J if the term arrangements reduce the amount of time he is with her.
The fact that the children coped with a week about arrangement during school holidays suggests that when they do not need to cope with all of the activities that I have mentioned which school term brings, they can cope living week about. It does not mean that they could cope with changing residence four times in 14 days as well as all of the activities that during school term are required of them. Four times about each fortnight with all of their activities appears a fairly disorganised living arrangement. I could not be satisfied on the available evidence that this arrangement is consistent with the children's emotional, psychological and physical wellbeing. These findings support a continuation of the existing arrangements pending trial as far as T is concerned. Also for both children, not making significant changes which may or may not work. When one incorporates into these arrangements changes in routine for the children’s birthdays, Diwali, Mother's Day and Father's Day, this is a great deal of movement the effect of which may well be asking too much of the children.
Minor adjustments to the children’s circumstances do not have the same significance. During submissions I expressed concern that during school term J has 12 days without seeing his father. At J’s age, I consider he needs to see his father at least weekly. Putting an additional afternoon into J’s time with his father narrows the gap during which the father and J do not see each other in a manner which will almost certainly contribute to their enjoyment of their relationship without detracting from J’s relationship with the mother or imposing too much change upon the child. Provided J is home to his mother at about mealtime or shortly after, there should be no disruption to his routine which will trouble him. If there is minor disruption, the benefits in a relationship sense outweigh the detriments.
I consider maintaining the essential arrangements that have existed for approximately the last nine months, with the variations that I have referred to, pending trial ensures maintenance of an arrangement which, from the children's perspectives, are working well. Doing so avoids the risks that changes may involve requiring too much of the children and imposing changes the effects of which are far from clear. Although this means the children’s routines are not completely aligned this flows from the different arrangements to both children’s arrangements implemented over the last nine months, a circumstance that appears to acknowledge that developmentally the children are different. These are findings to which I attach considerable weight.
Section 60CC(3)(e) concerns the practical difficulty and expense of the children spending time with and communicating with a parent. As I have already found, the parties live close to each other. Both have motor vehicles and are able to give effect to the father’s and mother’s proposed arrangements. There are no practical difficulties which stand in the way of either party's proposals.
Section 60CC(3)(f) concerns the parties (and grandparents) ability to meet the children’s needs. There is no dispute that both parties and the paternal grandparents have the capacity to provide for the children’s physical and intellectual needs. Since June 2006 the evidence suggests the children’s emotional needs have been adequately addressed in both homes. On this issue the mother’s earlier primary care of J is more significant than is her earlier primary care of T. Because the mother has had considerably greater care of J, it is difficult to anticipate the effect upon him emotionally if the amount of time he spends with the mother is reduced in accordance with the father’s proposals. For the reasons already discussed, during school term, the father’s proposals potentially requires too much of both children physically and emotionally. Notwithstanding the father’s parental competence, I am concerned that even bringing all of his love and skills to bear, he may not have the ability to meet J’s possible emotional need to be more significantly in his mother’s care. As I have previously said I am concerned about the potential physical demands the father’s proposals place upon the children and as far as T is concerned the possible adverse impact this may have upon him educationally. Whether with their obvious parenting skills the parties and grandparents are able to alleviate the possible adverse impact of these changes is something I am presently unable to determine. Similar issues do not arise if orders are made as the mother suggests.
Section 60CC(3)(g) concerns the children’s maturity, cultural issues and other relevant characteristics. It appears both children are reaching their developmental milestones in accordance with their chronological ages. Both children appear to have age appropriate maturity. The parties are Hindu and agree the children will be raised as Hindus. Although they will be exposed to Christianity, there is no suggestion they will practice it. Whichever outcome is ordered, the children will be exposed to Hinduism and those aspects of their parents' culture embraced during cohabitation.
The father seeks an order to spend time with the children at Christmas, the significance of which in this family is not apparent. It seems more important that the children celebrate Diwali, a significant Hindu celebration, with their parents. Ordering changes to the children’s routines for celebrations which have no particular significance to the parties or children undermines the Court's ability to provide the children with reasonably ordered living arrangements. Because Christmas has no obvious significance, if the orders enable the children to share Christmas between their parents without imposing further residential change this will be sufficient. In State schools the Christmas school holidays usually start close to Christmas Day. By alternating the first week of the Christmas school holidays between the parties, the children will have alternate Christmases with each of their parents. I consider this appropriate.
Aboriginal and Torres Strait Island cultural issues are not relevant in this case.
Section 60CC(3)(i) concerns the parties attitudes to the children and the responsibility of parenting. Both parents are focused on their children's wellbeing and are demonstrably responsible parents. Each has a great deal to contribute to their children and is committed to doing so. Both have been involved in T’s schooling and the children’s extra-curricular activities. The father has been more substantially involved in Scouts and piano and the mother more substantially involved in day-to-day issues with school, tutoring classes, cricket and swimming. The orders in part reflect the parties’ particular interests, with the father continuing primary responsibility for Scouts and piano and the mother continuing primary responsibility for swimming, cricket and tutoring classes.
I have already dealt with family violence. There are no further violence issues that require consideration at this stage.
There are no operative family violence orders.
Section 60CC(3)(l) highlights the desirability of making orders least likely to result in further proceedings. As is the situation in most interim proceedings, this provision has little significance. Unless the parties reach an agreement concerning the children's long-term care, there will be a final hearing. I would like to see the parties embrace further mediation and see if they can agree upon arrangements which will address the children's long-term interests. Before doing so they ought to confer with a social scientist experienced in family breakdown and child development. The purpose being to obtain information concerning the type of long-term living arrangements appropriate for their children.
There are no further issues arising pursuant to s 60CC(3)(m).
There is considerable overlap between ss 60CC(3)(c), (f), (i) and s 60CC(4) and s 60CC(4A). I have already made findings concerning the extent to which each of the parties has fulfilled or failed to fulfil his or her parental responsibilities. Both parents have availed themselves of every opportunity to spend as much time with the children as their circumstances permits. Concerning s 60CC(4)(b)(i) I mention the father’s application for an injunction restraining the mother from taking the children to a particular temple. The mother does not challenge the father’s evidence concerning their pre-separation decision that the children would not participate in this particular faith. Before the mother departed from their agreement she should have consulted the father and they jointly determined whether or not to make such a change to the children's faith. By failing to do so, her generally sound judgment failed her. In this instance the mother has given insufficient regard to the father’s entitlement to be involved in these long term parental decisions. Similar issues have not arisen with the father.
The mother has facilitated the children spending time with and communicating with their father to the extent she believes is developmentally and circumstantially appropriate. The father wants to spend more time with the children. There is no proper basis for criticising either parent’s stance.
I have made findings concerning the father’s financial contribution towards the children. On the information available he appears to have properly fulfilled his obligation to financially support the children, as indeed has the mother.
I turn now to the application of the presumption of equal shared parental responsibility identified in s 61DA. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence (s 61DA(2). Both parties make complaints of family violence, although they do not agree on its details. Both parties give a detailed account of the evidence they say will support findings concerning the occurrence of family violence during cohabitation. The evidence does not appear inherently incredible and in my view the evidence is sufficient for me to conclude that there are reasonable grounds in this interim hearing to find that during cohabitation there has been family violence. The presumption of equal shared parental responsibility therefore does not apply. However, this is not the end of the issue concerning whether or not the Court should make an order that the parties equally share parental responsibility for the children.
The father seeks such an order and sets out a strong case for the Court making an order to this effect. There is no dispute that the father has been intimately involved in decisions concerning the children's education, religion, extra-curricular activities and actively involved in their day to day care. Post separation he has discussed and compromised arrangements concerning school holiday arrangements and has sought to discuss a number of long term parenting issues. The submissions made on the mother’s behalf concerning her opposition to the equal shared parental responsibility order seemed to centre upon her concerns about the parties' inability to communicate effectively concerning the children. But with respect to the mother, it is plain that the parties have explored and compromised significant issues post-separation issues concerning the children. Although it may have been tedious and at times stressful for her, perhaps also for the father, the children's interests require that they continue to make the efforts to discuss and agree on matters concerning the children's long-term care. Had there been an order for equal shared parental responsibility in force, the mother would have better understood her obligation to discuss this with the father. The parties would either have agreed to make a change to the children’s place of worship or failing agreement, the mother would not have started a process which must now cease. Discussion would have avoided any confusion in the children. This simple vignette shows the benefits to children of their parents exercising parental responsibility equally and jointly.
From the children's perspective, I can only see good will come from their parents jointly exercising parental responsibility. In this case I do not see any obvious detriments flowing from an interim equal shared parental responsibility order. By s 65 DAA such an order requires that I consider whether ordering that the children divide their time equally between their parents is in the children’s best interests. Consider means “a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met.” Goode and Goode (supra). I have made findings concerning the children’s need to maintain stability and continuity of care at this time and to avoid making changes the effects of which are uncertain. In my view, the father’s approach is contraindicated by the potential disorganisation his proposal will bring to the children's lives during school term. I do not consider for the reasons I have earlier given that his approach is consistent with the children's best interests at this time. Clearly, having regard to my earlier findings, an equal time arrangement is reasonably practicable and if I was satisfied such an outcome was in the children's best interests it could be implemented without undue inconvenience to either party.
I must thus consider whether ordering the children to spend substantial and significant time with each of their parents is in the children’s best interests. As I have already found, substantial and significant time is defied in s 65 DAA(3). It is defined by reference to a parent’s involvement in the child’s life and, unlike equal time, is not defined by reference to a statutorily defined amount of time. Thus different periods of time and configurations of living arrangements will satisfy the definition. The mother’s proposal is consistent with the definition of substantial and significant time. Her proposal and the arrangement since 9 June 2006 ensures the father spends time with the children during school holidays, days that do not fall on weekends, on weekends and on special occasions. He will be involved in the children's daily routines, during school holidays, on weekends and with T but to a lesser extent J, during school term. The extent of his involvement in their lives at this point ensures a continuity of arrangement, with minor variations, to those arrangements which have existed since 9 June 2006 in circumstances where the children's relationships with him have continued to flourish and I am satisfied will be maintained in a meaningful way pending the final hearing. The orders I will make are consistent with and promote the children's best interests pending a final hearing.
Finally I turn to consider some specific aspects of the orders I will make. Firstly, concerning special occasions, the father sought to make adjustments to the children's routine for special occasions beyond Father's Day, Mother's Day, Diwali and the children's birthdays. Both parties seek changes to accommodate these special occasions. I have already made findings concerning why I have not made special arrangements other than alternating the commencement of the Christmas school holidays for Christmas. I have not made special provision for those other occasions the father pursued because I could not see that they were occasions of such significance that I should order even more changes to the children's routine. I consider the frequency of movement between the children’s respective homes at this point to be at the outer limit of what I consider the children could reasonably be expected to cope with. If the other occasions were critical to the children's enjoyment of these days with both parents, it may be the instability that ordering these extra occasions involves may have been warranted. But given the frequency with which the father will see the children, he will see them within sufficient proximity to those additional occasions in which he expressed interest that these events will be fresh in the children's minds. He can celebrate these additional occasions during periods when the children will otherwise be with him.

I have not made provision for the mother to have time with the children on the children's birthdays mid week during school term. This is because on every school day during term they will spend time with her. My favouring the father, in the sense of making specific provision for it, is because he does not see the children every day. As far as possible I wanted to ensure that the children saw both parents in a fashion which does not impose so much movement on the children's birthdays that the children do not have a chance to themselves enjoy the day.
I have left school term weekends with the father finishing at 4 pm. The father says this clashes with J’s afternoon sleep. Perhaps he might put J down slightly earlier on Sunday afternoons in which case he is likely to awaken slightly earlier. He seems to cope with this sort of changeover time after day care. In the interests of consistency I have not made the change sought.
The mother also wanted to make adjustments for Father's Day and Mother's Day weekends. She proposed substituting weekend periods for the weekend periods that a parent would forgo in favour of the other having the children with them on Father's or Mother's Day. On her approach, the prospect that the children would have three weekends in a row with one parent is avoided. The reason I have not proceeded with the substitution arrangement the mother suggests is that it requires further adjustments to calendars and runs the risk of the parties’ simply losing track of when the children are to be with them. The outcome should not in the long term result in one parent having more weekends with the children than the other, with the adjustments in the long-term cancelling one another out.
Insofar as they relate to the short-term holidays, the school holiday arrangements proposed by the father I thought clearer and more consistent with routine than those proposed by the mother.
In relation to the Christmas holidays, I have alternated week about and started at different times to ensure Christmas is celebrated each alternate year in each parent's home.
As far as possible collection and return takes place from school or day care. This gives the father an additional opportunity to meet his son's school friends, teachers and parents of their school friends. It also gives the children a chance to, in effect, show both of their parents to their school friends, teachers and parents of school friends. It affords the preschool an opportunity for impromptu discussions concerning the children with both parents. Otherwise, when changeover does not take place at school or day care, the parents will share equally the effort involved in delivering the children between the parents' home. It sends a positive message to the children if they see each of their parents going to some effort to support their relationship with the other.
For these reasons I am satisfied that the orders I have previously outlined are in the children's best interests and I order accordingly.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 13 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GOODE & GOODE

[2007] FamCA 315

21 February 2007

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