Groff & Fox
[2023] FedCFamC2F 1729
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Groff & Fox [2023] FedCFamC2F 1729
File number(s): PAC 2332 of 2021 Judgment of: JUDGE MYERS Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – parenting proceedings – where the parties reached a consent position for equal shared parental responsibility – where the court finds an equal time arrangement is in the best interests of the child. Legislation: Evidence Act 1995 (Cth) s 128,
Family Law Act 1975 (Cth) ss 4AA, 60CC(2)(a)-(b) & (3)(a)-(m), 60H, 60H(1)(c), 65DAA(5), 68B,
Aboriginal Land Rights Act 1983 (NSW) s 4,
Status of Children Act 1996 (NSW) s 14(1A)(a)-(b).
Division: Division 2 Family Law Number of paragraphs: 61 Date of last submission/s: 21 November 2023 Date of hearing: 14-16 November 2023 Counsel for the Applicant: Ms Clifton Solicitor for the Applicant: Rmg Law & Associates Counsel for the Respondent: Ms Winfield Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor ORDERS
PAC 2332 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GROFF
Applicant
AND: MS FOX
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.That X born in 2019 (‘the child’) live with the parties on an equal time basis as agreed between the parties in writing or otherwise as follows:
(a)On a fortnightly basis:
(i)With the Respondent from 3:00pm Saturday to 3:00pm Wednesday;
(ii)With the Applicant from 3:00pm Wednesday to 3:00pm Sunday;
(iii)With the Respondent from 3:00pm Sunday to 3:00pm Wednesday;
(iv)With the Applicant from 3:00pm Wednesday to 3:00pm Saturday.
2.Despite the provision of any other Order, unless otherwise agreed in writing:
(a)That until the commencement of the school year in January or February 2028, during the long summer school holiday period at the end of Term 4:
(i)The child is to spend half the school holiday time with each parent in alternating week about blocks.
(ii)To facilitate such, the child is to spend time with the Respondent from the last day of school term for seven (7) nights and then to the care of the Applicant for seven (7) nights and time is to continue on a week about basis until the first day of the school term in the new year.
3.Commencing at the end of Term 4 in 2028 and thereafter the child is to spend half the school holiday time with each parent in alternating years on the following basis:
(a)In the odd numbered years, for the first half of the school holiday with the Respondent commencing from the last day of school for school term until 5.00pm on the Friday three weeks thereafter and the remainder of the school holidays nights with the Applicant.
(b)In the even numbered years, for the first half of the school holiday with the Applicant commencing from the last day of school for school term until 5.00pm on the Friday three weeks thereafter and the remainder of the school holidays nights with the Respondent.
(c)With the Respondent from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in odd-numbered years and with the Applicant from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even-numbered years; and
(d)With the Respondent from 2.00pm on Christmas Day until 2.00pm on Boxing Day in even-numbered years and with the Applicant from 2.00pm on Christmas Day until 2.00pm on Boxing Day in odd-numbered years.
4.During the Easter period, X shall spend time:
(a)With the Respondent in odd-numbered years and with the Applicant in even-numbered years from 10.00am Easter Saturday on the Easter weekend until 9:00am Easter Monday.
5.All Outstanding Applications are dismissed, and the proceedings are removed from the List of Matters awaiting finalisation.
AND THE COURT NOTES THAT:
A.These are Final Orders made in addition to the Parenting Orders dated 1 December 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
JUDGE MYERS:
This is a final oral decision in the matter of Groff & Fox relating to the child, X Fox-Groff, born in 2019.
The hearing proceeded over four days concluding on 21 November 2023. The parties agreed to finalise the majority of matters relating to X by way of Partial Final Consent Orders dated 1 December 2023 that provided in summary:
·The parties have equal shared parental responsibility for X;
·That X attend B School, commencing first Term in 2025;
·An arrangement for time with both parties during the end of Terms 1, 2 and 3 school holidays;
·Changeovers occur at school or, otherwise, McDonald's Suburb C;
·Specific time arrangements on special occasions such as Mother's Day, A Special Day, X's birthday and each party’s birthday;
·Video call communication;
·A non-denigration order;
·Restraints around family violence and physical discipline;
·Orders for the provision of information in times of emergency, illness, and medical treatment;
·The parties keeping one another advised of the other's contact numbers and email addresses;
·An authority in respect of information relating to schooling and that allows the parties to attend at school and at special events.
·There is a restriction on the parties moving more than 20 kilometres outside of the Sydney metropolitan area without the other parties’ consent.
The Applicant seeks additional Final Orders in her Minute of Order that form Exhibit ‘O’ in the proceedings that provide in broad terms:
·That the child shall live with the Applicant:
·The child shall spend time with the Respondent essentially on a six/eight arrangement - six nights with the Respondent:
·Time during the school holidays on a week about basis, and then, commencing in Term 4 in 2028 and thereafter, Christmas school holiday time for the first half in odd numbered years for one and the second half in odd numbered years for the other and vice versa:
·Specific orders were sought with respect to all remaining arrangements for Christmas Eve, Christmas Day and Boxing Day and an arrangement for some time to be spent in alternating years for Easter on the Easter weekend.
The Respondent seeks additional Final Orders in her Minute of Order that form Exhibit ‘P’ in the proceedings that provide in broad terms:
·An equal time arrangement in a four/four/three/three arrangement:
·Time during the Christmas school holidays on an equal basis:
·Special times, such as Christmas Eve, Christmas Day and the Easter weekend:
·Specific orders were sought with respect to the Applicant being removed from X's Birth Certificate, and the order that is sought reads this:
Each of the parties do all such acts and things as are necessary to cause New South Wales Registry of Births, Deaths and Marriages - change [X]'s Birth Certificate:
(a)To record the respondent as parent 1 and/or birth mother; and
(b)To remove the name, [Groff] - remove from the Birth Certificate.
·A third order was sought in these terms, that:
The applicant to do such things as are necessary to ensure [X] does not come into contact with nor not to be around [Ms D] or [Mr E].
The first issue the Court deals with is that of Ms Fox's application to record her as parent 1 on X's Birth Certificate and to remove Ms Groff from X's Birth Certificate. The genesis of this dispute is, in the view of the Court, twofold. Firstly, Ms Fox, who is the biological birth mother, feels aggrieved as to the manner in which X's first Birth Certificate was registered, where in 2019, Births, Deaths and Marriages produced a Birth Certificate that recorded Ms Groff as the first recorded mother, although not numbered one on the Birth Certificate, and Ms Fox as the second recorded mother, although not numbered two.
That Birth Certificate forms part of Annexure “A” to Ms Fox's Affidavit filed on 25 October 2023 and is found at pages 33 of 88 of the same.
This aggrievement is compounded by Ms Fox's discovery of the following statements made by Ms Groff where Ms Groff applied to Centrelink for a parenting benefit for X and stated in her application that she was the gaining parent in a surrogacy arrangement, that X was an Aboriginal child, and further that Ms Groff did not share care of X with another person.
In early 2019, Ms Groff had a social media message conversation with Ms F where Ms F asked Ms Groff:
Are you carrying the baby?
to which Ms Groff responded:
No. We did IVF and have used my egg, but [Ms Fox] is carrying Bub.
To be clear, Ms Groff was not the gaining parent in a surrogacy arrangement and X has no Aboriginal heritage as she is not biologically related to Ms Groff. Ms Groff did share care of X, and X was not a product of in vitro fertilisation, rather Ms Fox fell pregnant with the use of a syringe, and lastly, the egg that was fertilised and became X is not Ms Groff's egg, it was Ms Fox's egg.
The Court does not accept any suggestion by Ms Groff that Ms Fox knew of the misrepresentations contained in the Centrelink document. The Court is unsurprised by Ms Fox's level of aggrievement given the false representations made by Ms Groff. Secondly, Ms Fox's aggrievement stems from a decision by a Senior Registrar during interim proceedings in this matter, where, on 16 July 2021, orders were made for X to live with Ms Groff for nine nights in a fortnight and spend five nights a fortnight with Ms Fox.
During cross-examination, found at page 174 of the transcript of proceedings on 15 November 2023, Ms Fox gave evidence around the issue of the Birth Certificate, including that she was shocked the Court would make an order removing X from her primary care.
Ms Fox described that she felt legally bound to Ms Groff where X had Ms Groff's last name and Ms Groff was listed on the Birth Certificate. She suggested it was not what she had intended for her child at all.
Ms Fox ultimately broke down on the stand when telling the Court, she was shocked at the orders the Court made because she was the biological parent. The level of distress and loss, Ms Fox expressed around the Court's earlier decision was real and left the Court in little doubt she deeply regretted Ms Groff's inclusion on the Birth Certificate.
Ultimately, the Birth Certificate was amended by Births, Deaths and Marriages and reissued in 2021. The new Birth Certificate has Ms Groff's name recorded at item 2 and Ms Fox's name at item 3. The Birth Certificate carries the following endorsement:
Birth mother is [Ms Fox]. Registrar 2021.
The Court could remove Ms Groff's name from X's Birth Certificate, but it would only be appropriate to do so where the Court found Ms Groff was not one of X's parents.
Section 60H of the Family Law Act1975 (Cth) (‘the Act’) provides:
(1) If:
(a) a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b) either:
(i) the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii) under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c) the child is the child of the woman and of the other intended parent; and
(d) if a person other than the woman and the other intended parent provided genetic material -- the child is not the child of that person.
Forming Exhibit ‘F’ in the proceedings is that of Ms Fox's Affidavit sworn on 3 May 2021. The Affidavit of Ms Fox deposes, at paragraphs 10-22 as to the following:
[Ms Groff] and I met in 2011. We commenced a relationship shortly thereafter. [Ms Groff] and I then commenced cohabitation in 2014 up until [late] 2014. In [late] 2014, we decided to have a break and I moved out. [Ms Groff] and I resumed cohabitation [in early] 2018 until we separated on a final basis on 14 April 2021. In 2015, I wanted to have children, but the plan was put on hold due to being diagnosed with [a medical condition]. [In] 2018, [Ms Groff] and I became engaged. In 2018, [Ms Groff] and I then decided to fall pregnant. We sourced a donor, [Mr G] through [H Authority]. [Ms Groff] and I went to [Suburb J] to meet [Mr G] sometime in 2018. In 2018, [Ms Groff] and I performed the sperm insemination ourselves. Fortunately, I fell pregnant on the first go. In 2019, I again met the donor after falling pregnant and he signed the donor contract agreement to assign all parentage rights to myself.
Forming Exhibit ‘G’ is a copy of a direct social media message that was sent to Mr G in 2018. It is not disputed Ms Groff authored the message that provided:
Hi [Mr G], my partner and myself have been together for 7 years and planning on getting married in 2020. We have children from previous relationships but would like to expand our family together. If you are still available for sperm donations we would like to chat with you further. Thank you for your time. [Ms Groff] and [Ms Fox].
Annexed and marked with the letter ‘C’ within Ms Fox's Affidavit sworn/ affirmed on 25 October 2023 is a copy of the sperm donor agreement between Mr G and Ms Fox. The Court notes the agreement was executed by Ms Fox and Mr G and it is not disputed was witnessed by Ms Groff.
Ms Fox gave evidence in these proceedings that the contents of her Affidavit sworn/ affirmed on 3 May 2021, forming Exhibit ‘F’, were incorrect and that she did not read the Affidavit properly and was in a rush to have it filed as proceedings were before the Court the following day. The Court notes proceedings were not before the Court the following day and the Court finds that, on the balance of probabilities, the contents of the Affidavit were an accurate statement of what took place between 2011 and the time following Ms Fox falling pregnant in 2018. The message forming Exhibit ‘G’ to Mr G and Ms Groff having witnessed the sperm donor agreement lend further strength to the Court’s findings. The Court found that both parties lacked credibility and were prepared to make statements in the knowledge such statements were incorrect if it suited their purpose. Both parties had engaged in Centrelink fraud, and the Court issued both parties certificates pursuant to section 128 of the Evidence Act 1995 (Cth) in respect of their representations to Centrelink. The Court was in no small part troubled by the misrepresentations of Ms Groff as to the biological parentage of X.
The Court notes the provisions of section 14 of the Status of Children Act 1996 (NSW) (‘Status of Children Act’) that provides, at subparagraph (1A), as follows: -
(1A) When a woman who is married to or who is the the de factor partner of another woman has undergone a fertilisation procedure as a result of which she becomes pregnant:
(a) the other woman is presumed to be a parent of any child born as a result of the pregnancy, but only if the other woman consented to the procedure, and
(b) the woman who has become pregnant is presumed to be the mother of any child born as a result of the pregnancy even if she did not provide the ovum used in the procedure.
The Court firstly finds the parties were in a de facto relationship, as defined by section 4AA of the Act, as at the time Ms Fox fell pregnant, where the Court finds that the contents of Ms Fox’s Affidavit, sworn on 31 May 2021, were true and correct.
The Court further finds that Ms Fox and Ms Groff were in a de facto relationship as at the time Ms Fox underwent a fertilisation procedure using what is not disputed was a syringe and, as result, became pregnant. As such, the provisions of section 14(1A)(a) of the Status of Children Act applies and Ms Groff is the other woman with whom Ms Fox was in a de facto relationship and, as such, Ms Groff is presumed to be a parent of X.
The Court turns to the provision of section 60H of the Act and finds that:
(1)X was born to Ms Fox as a result of carrying out of an artificial conception procedure while she was a de facto partner of Ms Groff.
(2)Ms Fox and Ms Groff consented to the carrying out of the procedure, and Mr G consented to the use of his sperm in the procedure where his sperm was used to artificially impregnate Ms Fox by syringe.
Pursuant to section 14(1A) of the Status of Children Act, X is a child of Ms Fox and Ms Groff. Given the above findings, pursuant to section 60H(1)(c) of the Act, X is the child of Ms Fox and Ms Groff. Accordingly, Ms Fox’s application for Ms Groff to be removed from X’s Birth Certificate is refused. The Birth Certificate for X issued by Births, Deaths and Marriages does not record either Ms Fox or Ms Groff as Parent 1. It does record Ms Fox as the birth mother.
The order sought by Ms Fox that each of the parties do all such acts and things as are necessary to cause New South Wales Registry of Births, Deaths, and Marriages to change X’s Birth Certificate to record the Respondent as Parent 1 and/or birth mother is misconceived and, as such, is refused.
The Court turns to the parties’ competing proposals with respect to the injunctive order Ms Fox seeks at proposed order 5 that provides:
The Applicant do all such things as are necessary to ensure [X] does not come into contact with nor not to be around [Ms D] nor [Mr E].
It is important to understand that Ms D is Ms Groff’s daughter and Mr E is Ms D’s partner. By virtue of the findings made by the Court with reference to section 60H of the Act, Ms D is technically X’s sister. Ms Fox’s evidence regarding Ms D can be found around and within paragraphs 173, 206, 207 and 223 of her Affidavit. That evidence lacks specific detail that could create a foundation for the Court to find the order was necessary to ensure that X is not exposed to, or subjected to, abuse, neglect or family violence causing her physical or psychological harm, having regard to section 60CC(2)(b) of the Act.
Further, the evidence falls short of the Court making injunctive orders pursuant to section 68B of the Act. It was not put to Ms Groff in cross-examination that Ms D or her boyfriend pose a risk to X, nor was the issue of an injunction explored with Ms Groff.
It should be remembered that at the time the parties were cross-examined, Ms Fox sought orders as contained in Exhibit ‘A’ in the proceedings. The proposed order 4 was misconceived as the wording as proposed made any order unenforceable where it provided:
[X] is not to be around [Ms D] or [Mr E].
The injunctive order sought by Ms Fox is not in the best interests of X where it would deprive X of a relationship with her sister and her sister’s partner. The Court does not need to make the injunctive order so as to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. Further, the Court does not consider the granting of an injunctive order is appropriate for X’s welfare. The application made by Ms Fox that provides the Applicant do with such things as are necessary to ensure X does not come into contact with nor be around Ms D or Mr E is refused.
The Court considers the competing proposals of the parties in relation to whether X should live equally with both parents or, alternatively, should be in a six/eight arrangement with either parent to have eight nights and the other parent six nights. It should be remembered that Ms Fox sought an alternative order in the proceedings, that if the arrangement was not an equal time arrangement and was a six/eight arrangement, that the six/eight arrangement favoured her where X would spend eight nights with Ms Fox and six nights with Ms Groff.
During cross-examination of the Child Court Expert the Expert opined: -
(1)It was in this case important for the Court to make orders such that if the parents are able to leave the court process feeling as though their relationship with X is affirmed in terms of time, then that may assist in building some cooperation between the parties.
(2)That it may be helpful for X to be able to spend significant time with both parents.
(3)It is possible that if the parties leave the court process feeling as though they have not been heard or that their views have not been taken into account in terms of validity of their relationship with X, that it is possible that the conflict could continue or that they could undermine or try to undermine the other parent’s relationship with X.
(4)That it may be difficult to have an arrangement that is not an equal time arrangement.
(5)That based upon the Expert’s observations of X with Ms Groff and also Ms Fox, their relationships were indistinguishable, and that X seemed to have quite a good, positive relationship with both parents.
(6)That both parents presented as having a normal mother-child relationship with X.
The observations of the parties with X by the Child Court Expert are such that the Court easily finds that there is a real benefit in X having a meaningful relationship with both parties.
Both parties seek orders for equal shared parental responsibility. The parties seek orders for either equal time or substantial and significant time. The Court finds that there is no need in this matter to make orders protecting X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence in either parties’ household. To be clear, this is not a risk case.
X lacks the level of maturity and understanding to give any views about a time arrangement any weight.
The nature of X’s loving relationship with both parties is such that the parties’ relationship with X is what is described as “indistinguishable”. Again, to be clear, this is a matter where X has a loving relationship and strong maternal bond with both parents.
This is not a case where either parent has failed to participate in making decisions about major long-term issues in relation to X or to spend time with or communicate with X.
This is not a decision where it is necessary for the Court to make findings about the extent to which either party has maintained X or failed to do so.
The Court considers the likely effect of any change in X’s circumstances, including her separation from either parent or other child or person. X has, for as long as she could realistically remember, been living with Ms Groff for nine nights a fortnight and Ms Fox for five nights a fortnight. Given her age, the change proposed by Ms Fox that would see a change to equal time would see X separated from Ms Groff by an increased two nights in a fortnight. If the Court made orders for X to live with Ms Fox and spend six nights with Ms Groff, this would see X separated from Ms Groff by an increased three nights a fortnight from the current arrangement.
This case is unusual where the Court accepts X’s relationship with both parents is indistinguishable. In effect, X has two maternal parents and is equally bonded to both. A change in time whereby X spends equal time with both parents will not be detrimental and will, in fact, be positive where she can enjoy equally the maternal bond she shares with both parents. Any separation X may experience from other children or persons in each party’s household is not determinative in this matter.
Placing X in an eight/six arrangement in favour of Ms Fox would cause a larger separation from Ms Groff, and by virtue of the increased separation it would be undesirable and detrimental.
Both parties live sufficiently close to one another such that there is no practical difficulty or expense to X spending time with or communicating with the parents.
Both parties well possess the capacity to provide for X’s needs, including her intellectual and emotional needs where both parents are well-experienced capable parents. While both parents struggle with some mental health issues around anxiety, this issue in no way diminishes the parties’ well-established capacity to provide for X’s needs.
There is nothing in terms of the parties’ maturity, sex, lifestyle or background or the child’s that is relevant in these proceedings.
Ms Groff is Aboriginal, where on the face of the material she meets the widely adopted test that consists of three elements being:
(1)the person must identify as Aboriginal;
(2)the Aboriginal community must recognise the person as Aboriginal; and
(3)the person is Aboriginal by way of descent.
This test is recognised in legislation, including the definition of Aboriginal person found at section 4 of the Aboriginal Land Rights Act 1983 (NSW). While Ms Groff is recognised as a parent under the Act, she is not biologically related to X. While X could conceivably identify as an Aboriginal person and be recognised as an Aboriginal person, because she is not the biological daughter of Ms Groff X is not of Aboriginal descent and as such, X is not an Aboriginal child.
The parties love X very much and have a good attitude towards the responsibility of parenthood.
The Court accepts that there has been family violence between the parties. Both parties made complaint against the other. Despite the evidence being tested, it is hard to know where the truth of either parties’ allegations lie where the Court found both parties lack credit.
It is the view of the Court that it is most likely in the circumstances of the relationship that both parties experienced family violence from the other where there was mutual partner violence. The issue is not significant in these proceedings, noting both parties’ respective applications.
The Court notes a historic ADVO made against Ms Fox. The Court draws limited inferences, noting that there was no information available to the Court regarding any evidence admitted in the proceedings for the order or findings made by the Local Court Magistrate who made the order.
A significant other relevant matter in these proceedings is the level of the parties’ aggrievement and unhappiness around the sharing of time by the other parent with their daughter. Both parties displayed a heightened level of upset at being cross-examined about their evidence. At one point, Ms Groff’s demeanour and tone when answering questions showed such disdain towards Counsel for Ms Fox that the Court stopped the cross-examination to ask Ms Groff about her feelings of aggrievement and to remind her that Counsel for Ms Fox was only doing her job (Transcript, 15 November 2023, pages 70 - 71). Ms Fox struggled on the stand, breaking down when answering questions around the shock she experienced when the Court made interim orders for X to predominantly live with Ms Groff. The Court is cognisant of the potential for the conflict between the parties to continue if one party feels the other has done better than them. The Court notes the Child Court Expert’s opinion in relation to this issue. In effect, the order least likely to be undermined by the other and least likely to lead to the institution of further proceedings is an order that sees X’s time split equally between the parties. This view is based on the Court having observed the parties’ strong sense of entitlement around their time with X.
The Court considers that equal time is in the best interests of X, having regard to those considerations found at section 60CC(2)(a) and (b) and (3)(a)-(m) of the Act.
The Court considers those matters set out at section 65DAA(5) of the Act to determine whether an arrangement of equal time is reasonably practicable. The parties live geographically close enough to one another to make equal time reasonably practicable. The parties are mature, resourceful people who are well-able to make arrangements necessary in order to facilitate an equal time arrangement in the terms suggested by Ms Fox. The Court has no doubt that, if necessary, the parents will ultimately use day care, out of school hours care or rely on family and friends, if necessary, to ensure they can care for X during the scheduled time she spends with each parent. In other words, the parents have the current and future capacity to facilitate an equal time arrangement in the terms sought by Ms Fox.
The Court considers the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time.
Counsel for Ms Groff at one stage described the parties’ relationship as “up and down”. There is an unusual aspect to the parties’ relationship post separation where they can get along and they have done such things as gone on holidays together with X to City K, Region L, attended events, gone out for meals with X, because, in the view of the Court, both parties place an importance on making sure X does not miss out.
Ms Fox gave evidence that the parties did not get along and cannot agree on issues. While the Court accepts that might sometimes be the case, it is in the view of the Court it is not always the case when it comes to X. The Court witnessed the parties having a short discussion and reach a compromised agreement regarding which school X is to attend. The parties deserve the Court’s praise for the manner in which a suitable arrangement was achieved that took into account the fact that Ms Fox does not drive. These parents have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement for equal time. This capacity will, in the view of the Court, be bolstered where neither party feels the other has better than the other with respect to the amount of time X spends with them.
The Court considers the impact of the arrangement on X. Ordinarily, the Court would question the impact of an equal time arrangement on a four-and-a-half-year-old and be concerned about the effect of the separation on the child of that age from their primary attachment figure. In this case, however, for X, it is different. X has two primary attachment figures, being Ms Groff and Ms Fox. X’s relationship with each of her parents is described as “indistinguishable from the other”. The arrangement for equal time suggested by Ms Fox will not see X having an arrangement that contains seven-night blocks with each parent immediately.
The impact on X of having an equal time arrangement will, in the view of the Court, not cause her detriment, it will promote harmony between the parents and be beneficial to her.
There are no other matters the Court considers relevant when considering whether an equal time arrangement is reasonably practicable. The Court finds an equal time arrangement is reasonably practicable.
The Court considers the dispute as to the arrangements for the Christmas school holidays. The orders sought by Ms Groff will cause the least effect upon X where the separation will be less for each parent. Ms Groff suggested alternating week blocks until Term 4 2028 and then a first half and second half arrangement. This arrangement is most suitable, given X will be older and better able to cope with the separation from both parents as opposed to starting such an arrangement commencing immediately. The parties both seek orders for time at Christmas and Easter.
Orders will be made in accordance with the reasons set out above and are contained at the beginning of this judgment.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 6 December 2023
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