Haley and Haley - [2010] FMCAfam 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALEY & HALEY

[2010] FMCAfam 72

FAMILY LAW – Children – interim arrangements for care of children aged 8, 7 and 5 – application of presumption of equal shared parental responsibility – both parties have provided predominant care for the children in the past – children lived with mother following separation – children lived with father when mother moved from South Australia to Queensland – mother seeks equal time arrangement upon her return to South Australia – father seeks orders that children live predominantly with him – consideration of s.60CC factors – best interests – what is reasonably practicable – implications of parties’ prior parenting relationship – application of criteria set out in s.65DAA(5).

Family Law Act 1975, ss.60CC; 61DA; 65DAA

Goode & Goode (2006) FLC 92-286
Astor & Astor [2007] FamCA 355
JG & BG (1994) 18 Fam LR 255

Applicant:

MR HALEY

Respondent:

MS HALEY

File Number:

ADC 4369 of 2009

Judgment of:

Brown FM

Hearing date:

28 January 2010

Date of Last Submission:

28 January 2010

Delivered at:

Adelaide

Delivered on:

1 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Keen

Solicitors for the Applicant:

O'Briens Solicitors

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Vicki Lehmann & Associates

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2001, [Y] born [in] 2002 and [Z] born [in] 2004 (hereinafter referred to as “the children”).
The children live with each of their parents on an equal time basis as follows:
(a)During term time, on a week about basis, moving between their parents’ respective homes at the commencement of school each Monday commencing with the children living with the father in the week commencing 1 February 2010;
(b)For half of each school holiday period the halves to be agreed between the parties and failing agreement the parent who has had the care of the children for the last week preceding the school holiday period have the children for the second half of each school holiday period.
In the event that the children are in the care of the father on Mother’s Day, the children are to spend from 9:00am to 5:00pm Mother’s Day with the mother.
In the event that the children are in the care of the mother on Father’s Day, the children are to spend from 9:00am to 5:00pm Father’s Day with the father.
On the occasion of each child’s birthday the children are to spend a period of at least three hours with the parent who is not then providing care for the children, the time to be agreed between the parties but failing agreement to be from 5:00pm to 8:00pm.
During 2010 the parties are to share the care of the children during the Easter period the days to be agreed between the parties but failing agreement to be that the father has the children on Good Friday and Easter Saturday and the mother has the children on Easter Sunday and Easter Monday.
The parties exchange all necessary information concerning the children, including matters pertaining to their school, sporting, extra mural activities, health and dietary issues in writing by means of a communication book passing between the parties on each occasion the children are exchanged between them.
The children have liberal telephone communication with each of their parents and each party facilitate the children being able to contact the other parent by telephone at all reasonable times.
As far as possible, the children be exchanged between the parties at the children’s school.

IT IS FURTHER ORDERED:

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 1 June 2010.
(a)The Family Report to deal with the following matters:
(b)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(c)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(d)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The matter is fixed for final hearing before Federal Magistrate Brown on 14 & 15 July 2010 at 10:00am NOTING 2 days allowed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 16 June 2010.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 30 June 2010.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof within 28 days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Haley & Haley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 4369 of 2009

MR HALEY

Applicant

And

MS HALEY

Respondent

REASONS FOR JUDGMENT

Introduction

This is a case to do with the application of the presumption of equal shared parental responsibility, at the interim stage, and what should follow, if the presumption is applied, in respect of arrangements for three children to spend time with each of their parents.
The children are [X] born [in] 2001; [Y] born [in] 2002; and [Z] born [in] 2004.
The parents concerned are the applicant and respondent respectively in these proceedings: Mr Haley “the father” and Ms Haley “the mother”.
The father wishes the children to live predominantly with him and to spend time with their mother on alternate weekends, during term time, and for half of each school holiday period.
The mother’s position is that the children should live in a shared care regime, moving between their parents’ respective households, on a week about basis.
In order to understand the respective positions of the parties, it is necessary to outline some of the history of their relationship, up to this point, which is not greatly controversial.
The parties married [in] 2000. The father has worked in managerial positions, in [the Retail Industry] throughout South Australia, during the parties' marriage.
This employment took the family to various locations throughout metropolitan and rural South Australia. Most recently, the parties and their three children moved to [B], in December of 2007. The children attended [R] School.
In June of 2008, the parties separated. The mother had earlier met

Mr W, who lives in Queensland, through the internet.
The mother remained living in the parties’ former family home in [G], with the children. The father moved to nearby [B]. The children spent time with their father, mainly on weekends.
The parties did not see any necessity to formulate their arrangements for the care of [X], [Y] and [Z] through any court made orders.
The friendship became the mother and Mr W became serious. The mother decided that she wanted to go and live in Queensland. This issue, for obvious reasons, created difficulties, so far as arrangements for the care of the three children were concerned.
Again, the parties did not see any need to seek orders, from the court, to resolve the issues arising from the mother’s wish to move interstate. She moved to South East Queensland in early June of 2009.
It was agreed that the three children would come into the care of the father, in [B], and would spend time with their mother during school holidays. The impression I have is that neither party had thoroughly thought through the implications of this arrangement, in the longer term.
At any event, it seems clear that the father was unhappy at the prospect of the children leaving South Australia and the mother was anxious to pursue her relationship with Mr W, which necessitated her leaving the state.
In July of 2009, the mother came to South Australia to spend time with the children, in the mid-year school holiday, as the father would not agree to then leaving the state. In August of 2009, the mother and

Mr W became engaged.
It must have been a significant change for Mr Haley to take up the predominant care of the children, as he continued to work full-time. His mother-in-law and sister-in-law moved to [R] to help in caring for the children, particularly after school.
It was agreed between the parties that the three children would be collected by their mother, at the Adelaide airport, on 6 October 2009, so that they could spend some time with her, in Queensland, during the end of third term school holiday.
It is at this stage that controversy arises between the parties as to what actually happened next. Ultimately, this controversy led to the involvement of the court.
The father’s position is that the children were due to be returned to him, in Adelaide, on 13 October 2009. However, on 8 October 2009, the mother told him that the children would not be returned, as had previously been agreed. He was concerned at what he perceived to be a clearly unilateral decision, on the mother’s part, regarding arrangements for the children’s care.
The mother’s position is that she asked the father, on 8 October 2009, whether he would agree to the children staying with her a little bit longer but he refused, which no doubt upset and irritated Ms Haley.
She was apparently in the process of moving house at the time. She apparently indicated to Mr Haley that, if he wanted the children back earlier than the 20^th October 2009, he should come to Queensland personally to collect them.
No doubt, in turn, this proposal upset and irritated the father. In these circumstances, he took some time off work, so that he could drive to Brisbane to collect the children. I think that it is self apparent that the parties did not deal with the issue of the arrangements for the October school holiday particularly well.
On 19 October 2009, whilst [X], [Y] and [Z] were playing in the mother’s kitchen, [Z] disclosed to the mother that she had been indecently touched by her paternal grandfather. The mother deposes that she was “confused and concerned” by [Z]’s comments. Her reaction is understandable.
The father arrived at the mother’s home on 20 October 2009. What happened next is unclear to me, other than that there was an unpleasant incident between the parties, which took place in the presence of the children.
Although I cannot be sure at this stage, I suspect that both parties were annoyed and irritated as each perceived that the other had behaved selfishly and unreasonably, in respect of arrangements for the children’s care. In addition, the mother must have been emotionally “on the edge” because of the recent disturbing disclosures made by [Z]. Other comments made by [X] had given credence to these disclosures.
The father does not provide much evidence regarding what happened, from his perspective, when he arrived at the mother’s home on 20 October. He bluntly says that the mother permitted him to leave with [X] but would not allow [Y] and [Z] to go with him. Accordingly, he returned to [B] with only [X].
The mother’s evidence is that there was a physical altercation between her and the father, which the father instigated and which culminated in him pushing her forcefully. This occurred after Mr Haley had picked up each of the children and placed them in his car.
It is her case that all three of the children were very upset about what they saw happening. She is critical of the father’s behaviour, which resulted in her making a complaint to the Queensland Police. My general impression is that there was an unseemly struggle for possession of the children, which left them divided.
[X] returned to the [R] School. The mother enrolled [Y] at a primary school near her home in Brisbane. [Z] was too young to be enrolled at primary school in Queensland.
On 23 October 2009, the mother spoke further with [Z], about her earlier disclosure. This led to the mother attending upon the child welfare authorities and the police in Queensland to advise the authorities of her concerns.
On 24 October, the mother informed the father of the issue, particularly that it was in the hands of the Queensland Police. Neither party makes a specific comment about the nature of their exchange.
It is common ground that the paternal grandfather has been interviewed by South Australian Police and subsequently charged in respect of offences relating to the children. He was released on bail on condition that he have no contact with either [X] or [Z].
This was the background to the father commencing proceedings, in this court, on 5 November 2009. He sought the immediate return of [Y] and [Z] to his care in South Australia.
On both an interim and a final basis, he sought orders that would see the children living predominantly with him. He also proposed that the parties should have equal shared parental responsibility for each of the children.
The mother responded to the father’s application on 26 November 2009. She filed a notice of child abuse, in which she detailed that the children’s paternal grandfather had “sexually interfered with …[X] and [Z] on numerous occasions whilst in the father’s care.”
It was her position, on both an interim and final basis, that all three children should live with her in Queensland and spend time with their father, during school holiday periods. She proposed that the parties should have “equal shared responsibility for making decisions regarding the long term care, welfare and development of the children.”
The parties competing initial interim applications were disposed of by me on 10 December 2009. I formed the view that it was inappropriate for the children to be separated from one another, in separate states. It was implicit from the parties’ respective applications that they each agreed that it was preferable that the three children concerned live in the one household.
For reasons, which I have already provided to the parties, at some length, I determined that that household should be the father’s household in [B]. Accordingly, I made orders which required the mother to deliver [Y] and [Z] to the father, at the Brisbane Airport, no later than midday on 15 December 2009.
At that stage, I was unsure as to what the mother’s plans were, particularly whether she proposed continuing to live in Queensland, so that she could maintain her relationship with Mr W.
However, I determined that the children should spend around half of the forthcoming end of year school holiday, with their mother, provided she was willing to come to South Australia.
I was of the view that the children needed as much normality and stability, in their lives, as possible. In this context, I wished the children to be able to maintain their relationship, during the holiday period, with both of their parents.
However, I was also well aware that further orders would need to be made after the holiday had finished and after some of the dust, which had been thrown up by the proceedings of December, had settled. This was the rationale for the further listing of the matter on 28 January 2010.
On 18 December 2009, the mother returned to live in South Australia permanently. She has ended her relationship with Mr W and intends to remain living in the [R] area indefinitely.
Currently, she is living at the home of a friend, which is located around five minutes drive away from the children’s school and about ten minutes drive away from where the father lives. This is the background to her application for the children to live with each of their parents on a shared care, week about basis.
It is her case that the father has never raised any specific criticisms of her parenting of any of the children concerned. In addition, she points to the fact that he was content to allow her to have the predominant care of the children, in the twelve months or so, following the parties’ separation.
In those circumstances, she argues that it is self apparent that she has a significant relationship with each of the children, arising from the fact that she has been their primary carer. In addition, she points to the fact that the father, in his court documents, seeks an order that the parties have “equal shared parental responsibility” for [X], [Y] and [Z].
The mother concedes that her relationship with the father is currently strained because of what has occurred in the recent past. In addition, she is reluctant to disclose her current address because she alleges the father assaulted her, in Brisbane, on 20 October 2009. Apparently, she has made a complaint to police about this incident.
However, notwithstanding her criticisms of the father, it is her case that she believes she and Mr Haley have the necessary attributes and communication skills to make a shared care arrangement work, particularly because there are no practical impediments to such an arrangement.
In this regard, she points to the fact that, from June of 2008, when the parties separated, until October of 2009, the parties were able to make arrangements for the care of the three children concerned without involvement from any third party or agency.
The father has filed a brief affidavit in support of his position that the children should live predominantly with him. Somewhat baldly he asserts that he does not “believe that it would be in the best interests of the children that they live with myself and the mother on an equal basis.”[1] He does not specifically provide any reasons to support his position.
[1] See father’s affidavit filed 27 January 2010 at paragraph 5
However, in his submissions to the court, he is highly critical of the mother’s conduct since the middle of 2009. In particular, he asserts that she has demonstrated a poor level of insight into the responsibilities of being a parent because she preferred to pursue her relationship with Mr W, rather than remain in South Australia with the children.
In addition, the father asserts that the mother has shown she has a compromised facility to support and encourage the children having a good relationship with him. In his case, this is a necessary conclusion, which the court must draw, arising from her decision to retain the three children, in Queensland, against his wishes.
These reasons for judgment are directed to resolve the issue of interim arrangements for the care of the three children concerned pending trial.
The parties agree that the matter needs to go to final hearing. They also agree that a family report should be prepared to assist the court in determining what is the best outcome for the three children concerned.
I will fix the matter for final hearing, before myself on 14 & 15 July 2010. I will also make the necessary procedural order in respect of the preparation of a family report.

The legal principles applicable

The service of [X], [Y] and [Z]’ best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
Necessarily, the nature of an interim hearing is different in quality to the hearing which takes place at the final stage. The interim hearing takes place in a shortened form, without the opportunity for cross-examination. In addition, very often, at the interim stage, there has been insufficient time for all the relevant evidence to be collected.
In cases involving children, an independent assessment, from a suitably qualified expert, which examines the parental relationships of any children involved and any relevant developmental needs which they may have, is very often an essential prerequisite to the court being able to make a satisfactory final order. In addition, such reports very often explore the views and wishes of older children about what is the appropriate outcome from their perspective.

In this case, as in the vast majority of cases at the interim stage, there has been insufficient time for a family report to be prepared. Notwithstanding these deficits, the court still needs to make a decision regarding the best interests of the children concerned because the parents themselves are in dispute about what are the appropriate arrangements for the care of their children.
It is frequently the case that the court is called upon to make interim determinations, against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The Full Court has directed, at the interim stage, that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them, bearing in mind the truncated nature of the interim hearing, which may make it impossible for the court to make concluded findings of fact [see Goode & Goode (supra) at 80,903].
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[2]
[2] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that, in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
·There are reasonable grounds to believe child abuse or family violence has occurred;
·Or, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Conclusions

Although the evidence in this case is limited, I have no difficulty in reaching the conclusion that each of the children has a meaningful level of relationship with both parties. It is difficult to see how it could be otherwise. Prior to separation, all three children lived with their parents in the parties’ former family home. Neither party asserts that this was anything other than a routine and happy domestic situation.
In the period following separation, the three children lived predominantly with their mother but saw their father regularly. Neither party has any criticisms of how the other behaved during this period.
From June 2009 onwards, the mother was content to leave all three children in the care of their father, who, for understandable reasons, sought assistance from two of the mother’s close relatives.
By necessary implication, the mother was satisfied that the father would be able to provide adequate care for the children, who would be happy and secure with him because of their existing significant level of relationship with him.
In these circumstances, I consider that the best interests of the children dictate that, whatever specific orders the court makes, they should encompass, as far as is possible, the benefits which the children are likely to derive from having a meaningful relationship with both of their parents.
The mother’s case is that [Z] and [X] have been exposed to sexual abuse. It is not alleged that the father is the instigator of this abuse, nor that he has a cavalier disregard for its potential seriousness.
In particular, it is not said that he has aided his father, in any way, to disregard the bail conditions pertaining to him. Accordingly, I do not think that there is any realistic prospect of any of the children coming into contact with Mr Haley Senior, at the present time.
The mother is highly critical of what she alleges is the father’s violent behaviour, in Brisbane, on 20 October 2009. She makes no other allegations of violence against the father.
I am not in a position to resolve definitely what precisely occurred on the date in question. I have already observed that I consider the incident does not seem to reflect particularly well on either party.
Undoubtedly, the whole issue of the October school holiday could have been much better handled, particularly if the parties had attempted to communicate better with one another and respect the other’s feelings and views about arrangements for the holiday.
Family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
In this particular case, the evidence currently before me indicates that the alleged violent incident of 20 October 2009, is an isolated one. The mother does not allege a power imbalance between her and the father, which has been characterised by frequent episodes of violence.
Accordingly, in the overall context of this case, I think that the court needs to give more emphasis to the desirability of promoting the children’s parental relationships, rather than to issues of family violence.
The views of the children are unknown to me. In my opinion, the appropriate avenue for the canvas of these views is through the agency of a family report, which of course is not currently to hand but will be at final hearing.
I have already observed that it is my preliminary view that each of the children has a significant level of relationship with both parents concerned. It also seems to be the case that the children have other significant relationships, with other relatives, who live in South Australia.
The father asserts that the mother has demonstrated a compromised facility to encourage the three children concerned to have a close and continuing relationship with him. It is also the tenor of his case that the mother has been selfish, preferring to live in Queensland, so that she could pursue her relationship with Mr W rather than to be available for [X], [Y] and [Z].
In this context, the father seeks to engage the provisions contained in section 60CC(4). In particular, he asserts that the mother has failed to spend time with the children in the past. As such, it is his case that she has forfeited the right to provide care for them in a joint parental situation.
The purpose of these proceedings is not to ascribe fault or blame to either of the parents concerned. Rather, it is to focus on what is the best outcome for each of the children concerned. In essence, I am not to award the children as “a prize” to the parent whom I think has behaved most credibility.
Through her counsel, the mother concedes that she did not make a “good choice” in the middle part of 2009. In this context, it is the mother’s case that she is only human and was responding to a complex emotional situation. I agree with this assessment.
In the overall context of this case, I do not think that it can be said that either party is disinterested in the welfare of the three children concerned and, as a result, does not want to participate in making decisions about the children or, in the past, has wished to limit the level of relationship each has had with the children.
As I have previously observed, the father did not provide, in his affidavit material, any substantive reason as to why he opposed the shared care regime. Although I am not in a position to determine the issue definitively, I am concerned that he may wish to curtail the mother’s relationship with the children because of his strong feelings towards her, as a result of his perception of what occurred in the second half of 2009.
There is no evidence to indicate anything other than that both parents are more than capable of providing for the children’s intellectual and emotional needs. In my view, neither party has any significant criticism of the other’s parental capacity in this regard, at least so far as what has been ventilated in these proceedings.
In all the circumstances of this case, I do not think that the presumption of equal shared parental responsibility is rebutted by either a consideration of the children’s overall best interests or issues to do with family violence.
I acknowledge that the relationship between the parties is far from ideal. This is hardly surprising, given the crises, which have arisen in their relationship, following the mother’s decision to relocate herself to Queensland.
However, notwithstanding these difficulties, the formal applications of each party acknowledges that they should share parental responsibility for the three children concerned. In my estimation, both the mother and father are vitally interested in all issues pertaining to the welfare of [X], [Y] and [Z].
Accordingly, notwithstanding the shortened nature of these proceedings, I am not satisfied that it would be inappropriate for the presumption of equal shared parental responsibility to be applied in this case.
It is a common misconception to think that section 61DA provides a presumption in respect of shared care arrangements for children. It does not. Rather, the presumption engages the further application of section 65DAA, which deals specifically with time, which in turn raises issues to do with the reasonable practicality of equal time arrangements and, if appropriate, substantial time ones.
In my view, this is the issue on which this case actually turns. Is the parties’ current parenting relationship so fraught with difficulties, arising from the circumstances which occurred in the latter part of last year, that it is essentially unworkable for them to have an equal time arrangement for the care of [X], [Y] and [Z]?
The mother points to the fact that, for around about a year, she and

Mr Haley were able to agree upon arrangements for the care of the three children, and by necessary implication, must have been able to communicate reasonably well.
In addition, she points to the fact that both parties live in close proximity, in a small country town and, as such, there are no logistical difficulties arising from the children moving between their parents’ homes, on a week about basis.
The father does not seem to have turned his mind specifically to issues of practicality. However, it would appear to be implicit in his current position that he does not trust the mother and, as such, there must be significant communication issues arising between them.
Having considered all the relevant section 60CC factors, I am unable to rule out a shared care arrangement, on the basis of the children’s best interests simpliciter.
For the reasons already provided, I consider that the children are likely to benefit from being able to engage with both their parents, in a variety of settings. I reach this conclusion because both parents have been the children’s principal provider of care, for extended periods of time, in the past and as such the children are likely to draw significant benefits, including emotional sustenance, from maintaining meaningful relations with each of their parents.
Accordingly, the weight of decision making for the court rests on the various criteria set out in section 65DAA(5), which deals with the practical implications, for both parents and children, of the court imposing a shared care arrangement on any particular family.
I accept that the parties’ relationship is currently a poor one. I would be naïve to think anything other, given the controversy which the present proceedings have precipitated. Undoubtedly, the current proceedings have cost each of the parties dearly, both in financial and emotional terms.
This is not a case to do with practical difficulties. The parties currently live in close proximity to one another in the [R]. Although the mother’s current accommodation is not permanent, it seems highly probable that she will be able to find a house for herself in the same locale or remain at her present address in the short to medium term.
Rather, it is a case concerning the emotional topography between the parties. Is it so rough and uneven and so full of potential pitfalls that it would be unfair to expect the children to traverse it on a week about basis?
The irony of the father’s position is that, regardless of whatever orders the court makes, the children will still have to spend regular periods of time with their mother. Accordingly, there will have to be some mechanism for the children to move regularly between the parties’ respective households. During term time, the most logical mechanism is for the children to be exchanged at their school.
Accordingly, it would seem to be the case that, whatever is the interim regime for the children, the parties will have to exchange some information regarding the children’s educational needs, particularly pertaining to their sporting and extra mural activities. Many of the difficulties, arising from the parties’ poor relationship, will remain whether the children live on a 12/2; 10/4; 7/7 day regime with their parents or whatever division of time basis the court determines.

However, it would seem to me, on the basis of the current evidence, that a regime of the children spending only weekend time with their mother, when she lives so close to them and has previously been their main provider of care is not one conducive to the service of their best interests.
Such an outcome may result in the children having a less rather than more meaningful relationship with their mother in the medium term. It is immaterial, in my view, that this might have been the outcome, if the mother had remained living in Queensland. As I said earlier, the children are not to be penalised because of any of their parents’ decisions.
At this juncture, I have no evidence as to what the likely impact will be on the children of an equal time arrangement. However, there is nothing to do indicate that it will definitively have a detrimental effect on them.
To the contrary, it would be my preliminary view that, after the turmoil which has befallen them since October of 2009, the court should do its best to bring about a normalisation in the care arrangements for the three children concerned.
In the past, the children have been predominantly cared for by their mother. It would seem to be the case that the parties, during their marriage, divided their family responsibilities along conventional lines, with the father being the family’s primary financial provider and the mother being more engaged in the discharge of parental responsibilities. In these circumstances, it is more of a departure for the children to live predominantly with their father than vice versa.
Accordingly, I do not think that I can rule out the practicality of a shared care regime on the basis of concerns which I hold about its potential impact on any of the children affected by it. Again, the matter boils down to the nature of the parties’ current relationship with one another and in particular their capacity, both now and in the future, to communicate with one another and implement such an arrangement.
In particular, the court must consider how the parties are likely to deal with difficulties, which are likely to arise from such a shared care arrangement. In the more recent past, the parties have demonstrated a singular inability to resolve the problems which arose from the mother’s desire to move to Queensland. I am not surprised at this. Issues involving parental relocation are among the most difficult, which the court is called upon to adjudicate.
In the circumstances of the parties, it is hardly surprising that the mother’s wish to move to Queensland, to pursue her relationship with Mr W, opened up a “Pandora’s Box” of difficulties. The ending of the mother’s relationship with Mr W and her apparent decision to remain permanently in the [R] area of South Australia has resolved those difficulties now.
In common with the vast majority of parents, who seek adjudication from the court, in respect of arrangements for the care of their children, the parties in this case do not communicate well, at present. In most case, for obvious reasons, the circumstances surrounding parental separation are likely to lead to more rather than less potential for differences of opinion to arise between parents, in respect of arrangements for the care of their children.
Necessarily, nearly every case involving care arrangements for children, must involve some degree of tension between the parents concerned. I do not think that it can be the legislative intent that shared parenting be ruled out in all of these cases.
In Astor & Astor[3] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not to be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[3] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard which is clearly unattainable, given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those who seek the court’s assistance to resolve their parenting disputes.
To a large extent, I accept that it is axiomatic that the parties, in this case, are likely to have some level of dysfunction in respect of implementing either a shared time arrangement or a substantial and significant time arrangement, given what has occurred between them, particularly since October of 2009. However, I do not think that that is necessarily the end of the matter.
It would be simplistic of the court to expect that shared parental time arrangements could only come about organically or consensually. Frequently, issues to do with the desirability or otherwise of shared care regimes are likely to generate considerable controversy between any parties concerned. Is the fact that the parties’ parenting relationship is not of a type which is likely to be highly amenable to a shared parenting relationship reason for the court to rule out such an arrangement in any particular case?
The circumstances of this case are unusual. It is the parent, who in the past has been the children’s primary provider of care, who seeks a shared care arrangement. On the other hand, the father, who became the children’s primary carer, in some senses by default, who opposes such a regime. If the mother had not gone to Queensland, in June of 2009, it seems an inescapable conclusion that all three children would have remained in her predominant care, without the father’s demur.
Having balanced all the relevant factors applicable, including the parties’ current communication issues, I am not able to conclude that the parties’ future capacity to implement a shared care arrangement and to resolve the difficulties, which are likely to arise from it, is irremediably damaged.
In addition, I think it potentially arbitrary to award the care of the children predominantly to the father because of the mother’s decision in June of 2009, which has subsequently been shown to have been an imprudent one.
The final hearing of the parties competing applications is only a few months off. At that stage, both the court and the parties themselves will have more evidence as to how the children are coping with the parties’ currently compromised parenting relationship.
Given this factor, I am not prepared to rule out a shared care arrangement, at this interim stage, on the basis of my consideration of the various criteria set out in section 65DAA(5).
Accordingly, it must follow that, following the application of the presumption of equal shared parental responsibility, the children concerned should live with each of their parents on an equal time basis.
The most logical form such arrangement should take is if the children are exchanged between the parties respective households at the commencement of school each Monday morning during term time.
It is also appropriate that orders be made for the children to spend equal periods of time, during school holidays, with each of their parents.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 1 February 2010