HALLEY & HALLEY - [2011] FMCAfam 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALLEY & HALLEY

[2011] FMCAfam 296

FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – presumption that equal shared parental responsibility is in a child’s best interests – whether presumption applies – whether presumption rebutted – whether equal time with each parent in child’s best interests – whether equal time with each parent reasonably practicable – substantial and significant time – whether substantial and significant time with each parent in child’s best interests – whether substantial and significant time reasonably practicable – child aged four years living with mother – where father on a rotating work roster.

FAMILY LAW – Spousal maintenance – application for spousal maintenance – where mother has care and control of a child of the marriage who has not attained the age of 18 years.

Family Law Act 1975 (Cth), ss.11C, 11F, 60C, 60CA, 60CC, 61DA, 65DAA, 72, 74, 75

Slattery & Slattery (1976) FLC 90-110

Applicant:

MR HALLEY

Respondent:

MS HALLEY

File Number:

SYC 6231 of 2009

Judgment of:

Scarlett FM

Hearing date:

1 July 2010

Date of Last Submission:

1 July 2010

Delivered at:

Sydney

Delivered on:

8 April 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

All previous parenting orders are discharged.
The applicant father and the respondent mother are to have equal shared parental responsibility about all major long term issues including education and health in relation to the child of the marriage [Z] born [in] 2006.
The mother is to have sole parental responsibility to make decisions about the day to day issues not being major long term issues in relation to the child [Z] at all times when he is in her care as provided by Orders made by this Court.
The father is to have sole parental responsibility to make decisions about the day to day issues not being major long term issues in relation to the child [Z] at all times when he is in the father’s care as provided by Orders made by this Court.
The child [Z] is to live with the mother.
The child [Z] is to spend time with the father as follows:
(a)UNTIL THE CHILD COMMENCES ATTENDING SCHOOL:
(i)Each alternate weekend from 9:00 am on the Friday until 6:30 pm on the Sunday PROVIDED THAT if the Monday following the Sunday is a public holiday then until 6:30 pm on the Monday;
(ii)In the off week on the father’s rostered days off PROVIDED THAT the father provides the mother seven (7) days notice of those days off;
(iii)For a period of no less than three (3) hours on the child’s birthday if that day should fall on a day when the child would not otherwise be spending time with the father;
(iv)For a period of not less than three (3) hours on the father’s birthday if that day should fall on a day when the child would not otherwise be spending time with the father;
(v)From 9:00 am until 6:30 pm on Father’s Day if that day should fall on a day when the child would not otherwise be spending time with the father;
(vi)
From 6:00 pm on Christmas Day until 6:30 pm on

27 December 2011 and all odd-numbered years thereafter;
(vii)From 9:00 am on 2 January until 6:30 pm on Australia Day; and
(viii)At such other times as the parties agree.
(b)ONCE THE CHILD COMMENCES ATTENDING SCHOOL:
(i)Each alternate weekend during the school term from after school on Friday until the start of school on the Monday morning PROVIDED THAT if the Monday following the Sunday is a public holiday then until the start of school on the Tuesday morning;
(ii)From after school on the Wednesday of the off week during the school term until the start of school on the Thursday morning;
(iii)For the first half of each Autumn, Winter and Spring school holiday period from after school on the last day of the school term until 6:30 pm on the middle Saturday of the school holiday period or at such other times as the parties agree;
(iv)From 9:00 am on 2 January until 6:30 pm on Australia Day in each year;
(v)For a period of not less than three (3) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be spending time with the father;
(vi)For a period of not less than three (3) hours on the father’s birthday in each year if that day should fall on a day when the child would not otherwise be spending time with the father;
(vii)From 9:00 am until 6:30 pm on Father’s Day if that day should fall on a day when the child would not otherwise be spending time with the father;
(viii)From 6:00 pm on Christmas Eve until 6:30 pm on Christmas Day in 2012 and all even-numbered years thereafter; and
(ix)At such other times as the parties agree.
Notwithstanding the provisions of Order 6 above the child is to spend time with the mother at the following times on the following days:
(a)For a period of not less than three (3) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be living with the mother;
(b)For a period of not less than three (3) hours on the mother’s birthday in each year if that day should fall on a day when the child would not otherwise be living with the mother; and
(c)From 9:00 am until 6:30 pm on Mother’s Day if that day should fall on a day when the child would not otherwise be living with the mother.
For the purpose of changeover between the parties in order to give effect to Order (6) above, the father or his mother Ms H or his sister Ms E are to collect the child from school or child care or the mother’s residence and return the child to school or child care or the mother’s residence as the case may be.
Each party must inform the other as soon as possible of any illness or injury requiring medical treatment, hospitalisation or attendance by any medical specialist.
Each party is entitled to obtain copies of any documents or other information relating to the child’s medical treatment from any treating medical practitioner or any hospital from which the child has obtained treatment.
Each party is entitled to obtain from any school attended by the child copies of school reports, newsletters, information about school photographs and other information normally provided to parents of children attending that school and this Order shall be authority to the child’s school to provide such information to each parent.
Each party is entitled to attend parent teacher interviews, school sporting events and other school functions normally attended by the parents of children attending the child’s school.
Each party must obtain the written consent of the other party in order to take the child out of Australia for the purpose of a holiday and provide to the other party an itinerary setting out details of travel and accommodation arrangements and contact telephone numbers no less than seven (7) days prior to the proposed date of travel out of Australia.
If either party wishes to take the child outside the State of New south Wales but within Australia for the purposes of a holiday that party must provide to the other an itinerary setting details of travel and accommodation arrangements and telephone contact numbers no less than seven (7) days prior to the proposed date of travel.
Each party must inform the other party of any change to their home address, landline telephone number and mobile telephone umber within forty-eight (48) hours of any change.
The father is to pay to the mother by way of spousal maintenance the sum of $120.00 per week by way of fortnightly instalments of $240.00 until the child [Z] attains the age of six (6) years or commences to attend school, whichever shall first occur.
The first payment of spousal maintenance is to be made within fourteen (14) days of the date of these Orders.
All other applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6231 of 2009

MR HALLEY

Applicant

And

MS HALLEY

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of a little boy called [Z] for parenting orders. He also seeks orders that he should only have to pay Child Support at the rate assessed by the Child Support Agency and that [Z] should not be taken out of Australia or out of New South Wales to live.
The mother has filed a response seeking:
i)Spousal maintenance in the sum of $100.00 per week;
ii)Child support for [Z] in the sum of $150.00 per week; and
iii)Parenting orders as set out in her affidavit of 27^th October 2009.

Background

The father was born [in] 1977. The mother was born [in] 1973.
The parties were married [in] 2007 and separated on 1^st February 2009. They were divorced on 1^st April 2010.
There is one child of the marriage. [Z] was born [in] 2006. He is nearly five years old. [Z] lives with his mother.
The mother has three children from her previous marriage:
a)[W], who was born [in] 1998;
b)[X] who was born [in] 1999; and
c)[Y], who was born [in] 2000.
The three girls all live with their mother.
The father commenced proceedings by filing an application and an affidavit in support on 16^th October 2009.
The application came before the Court on 1^st December 2009. Altobelli FM ordered that the parties should attend a Child Dispute Conference with a Family Consultant under the provisions of ss.11C and 11F of the Family Law Act 1975.
The parties attended the Child Dispute Conference that day. They reached an interim agreement about parenting orders. Those orders provided that [Z] was to spend time with his father:
a)Each alternate weekend from Friday to Sunday unless the paternal grandmother is unable to care for the child and the father is rostered to work);
b)Pick-up and drop-off time will depend on whether the father is working and what shift he is rostered on for;
c)If the father is not working he will collect [Z] on Friday morning and return him on Sunday at 6:30 pm;
d)In each alternate week [Z] will spend time with his father on his rostered days off;
e)[Z] will spend time with his father at other times as agreed by email;
f)(at) Christmas 2009 [Z] will spend from 6:00 pm on Christmas Day until 27^th December 2009 with the father;
g)(at) Christmas 2010 [Z] will spend from Christmas Eve until around 4:00 pm on Christmas Day with the father;
h)Thereafter to be alternated as above.
The Family Consultant noted that further mediation (which was to be admissible) was to be arranged with another Family Consultant on 2^nd February 2010. It is unclear why the Family Consultant memorandum showed that the parties were “seen on a privileged basis” as the orders made by his Honour on 1^st December 2009 clearly specified that the conference was to be reportable under s 11C of the Family Law Act.
In any event, the parties attended a further Child Dispute Conference on 3^rd[1] February 2010. The Family Consultant reported that no agreement had been reached on the issues of parental responsibility or with whom the child would live or spend time. The Family Consultant noted that during the conference the mother suggested that the child could live in an equal time week about parenting arrangement:
She said that she needs to return to work as she is having financial difficulties at present.[2]
[1] Not 2^nd
[2] Family Consultant Memorandum to Court dated 4 February 2010
On 17^th February 2010, Altobelli FM ordered that the parties should file financial statements, noting that the mother had filed a response seeking financial orders. His Honour also noted that the matter would be set down for an interim hearing on the next occasion.
The matter was transferred into my docket and on 3^rd March 2010, after submissions by the parties, I made the following interim orders:
(1) The father is permitted to spend time with the [Z] born [in] 2006 on Saturday [date omitted] 2010 for the purpose of attending the father’s sister’s wedding.
(2) The parties are restrained from allowing the child to be in the presence of any person administering to themselves a prohibited drug or in possession of a prohibited drug.
The application was heard on a final basis on 1^st July 2010.

Evidence

The applicant father relied on his affidavits of 16^th October 2009 and 20^th April 2010.
In his initiating affidavit of 16^th October 2009 the father complained that the mother made it difficult for him to spend time with his son. He has been employed by [omitted] for the past twelve years on a rotating roster. He also seeks an order that the child spends time with his mother, i.e. the child’s paternal grandmother, Ms H. He deposed:
My mother has been a very big part of my son’s life and would have him stay with her regularly. This has since stopped and my Mum only gets to spend time with him when I get access as I am currently living with her.[3]
[3] Affidavit of Mr Halley affirmed 16 October 2009 at paragraph [2]
In his affidavit sworn on 20^th April 2010 the father deposed that:
a)He has been employed at [omitted] since 17^th December 1997, currently as a [omitted];
b)He met the mother in December 2004 and she and her daughters moved in to live with him in February 2005;
c)The mother was renting a house and was on a single parent benefit;
d)He was working full-time on a salary of about $1100.00 a week and owned his own home, subject to a mortgage;
e)He assisted the mother to purchase a car on two occasions, by giving her $10,000.00 to buy a Subaru Outback and later paying a car loan for her in the sum of $34,000.00 in order to buy a Ford Territory;
f)They began to get deeper in debt;
g)The mother obtained work as a [omitted];
h)In September 2007 he sold the house for $421,000.00 and, after paying out the mortgage and other loans was left with approximately $36,000.00;
i)The parties separated that same month and the father moved back in to live with his mother;
j)He sold the Ford Territory for $32,000.00 and paid out the loan of $22,000.00;
k)He gave the balance of $10,000.00 to the mother so that she could purchase a Toyota Kluger;
l)They reconciled in January 2008;
m)The mother obtained work at [omitted];
n)The mother later obtained a job with a [omitted] but was unable to take up that position, as she was disqualified from holding a driver’s licence as a result of drink-driving offence;
o)The parties separated on 1^st February 2009;
p)The mother retained all the parties’ furniture and other personal items, with the exception of his clothes, computer, camera and tools;
q)Since separation he has been paying child support at the rate of $140.00 per week rather than the amount of approximately $132.22 assesses by the Child Support Agency;
r)He purchased a bed, bedding and clothing for the child and gave the mother the sum of $1000.00 to assist her in paying rent;
s)He pays half the child care and pre-school fees for the child;
t)He denies the mother’s accusation that he uses illicit drugs and annexed to his affidavit copies of blood tests and urine tests to support his denial;
u)He claims that the mother receives the same income as he does as he does from his employment;
v)He states that the child is attending pre-school so the mother is free to obtain employment to support herself.
The father gave oral evidence and was cross-examined by the mother.
The mother relied on her affidavits of 27^th October 2009 and 28^th April 2010. In her earlier affidavit the mother deposed that she has been unable to obtain employment because of her need to arrange the child’s time with the father around the father’s work roster. She deposes that:
Mr Halley’s roster is as follows, works Monday to Sunday then has Monday to Thursday off, works Friday to Thursday has Friday and Saturday off then works Sunday to Friday and has Saturday Sunday off.[4]
[4] Affidavit of Ms Halley 27.10.2009 at paragraph [7]
The mother concedes that the father pays more than the assessed amount of child support of $132.20 as he pays $140.00 per week. She states that she asked him only to pay her the current assessment.
The mother deposes that she needs to take the commitments of her other three children into account when making arrangements for [Z] and annexes a copy of consent orders made in proceedings against her former husband in the Family Court of Australia, being parenting orders in relation to the three girls.
The mother also deposes that she has asked the father to attend mediation with Relationships Australia about the child but he has declined to attend. Eventually he arranged mediation with another organisation. They went to mediation with Relationships Australia but the father refused to continue.
The mother accuses the father of using abusive language to her during the marriage and “screaming” at her in the presence of the children.
The mother deposed that she was renting a house at [address omitted] at a rent of $450.00 per week.
In her later affidavit, affirmed on 27^th April 2010, the mother deposed that she was to be evicted from the house in [omitted] as from

25^th May.
The mother also stated that she needed to work and had offered to the father a week about arrangement:
I offered Mr Halley a ‘1 week on 1 week off’ proposal with our son giving us both EQUAL SHARED CARE of our son, however, Mr Halley could not agree to this proposal as HE HAS TO WORK something I need to do.[5]
[5] Affidavit of Ms Halley 27.4.2010 at paragraph [6]
The mother reiterates her claims that the father’s rotating roster makes is difficult to arrange a regular routine for the child or for her;
Mr Halley’s rotating work roster provides NO routine or stability in our family life and in turn stops me from gaining any employment.[6]
[6] Ibid at [10
The mother goes on to state that she is applying for spousal maintenance so that she can stay at home and look after the parties’ son and fit in with the father’s roster.
The mother gave oral evidence and was cross-examined by the father. She gave a new home address, again in the suburb of [omitted]. She said that without a subpoena she was not able to get proof to support her claim that he was not applying for overtime for the purpose of this application.

Submissions

The father told the Court that he got to see [Z] every week. The child was spending quality time with him and he (the father) was really enjoying it. He and the mother had previously agreed that he could spend time with the child every second weekend from Friday to Sunday, as well as during the week. He said that his mother helps him care for the child.
The father said that his mother’s name is Ms H. His sister, Ms E, would also be able to assist him to do things like deliver the child to school.
The father said that he would like to have the child spend time with him every weekend.
The father told the Court that [Z] was born [in] 2006, so he was four years old at the time of the hearing. Socially, the father said, [Z] would not be ready to start school in 2011 but would start school in 2012.
The father expressed the wish that he could see his son regularly and that he could have an input on what happens in his son’s life.
As to the mother’s claim for spousal maintenance, the father submitted that:
a)The mother is a fit woman and can get a job;
b)He and the mother were both earning the same amount;
c)The mother has most of the joint assets;
d)The mother has both the capacity and the opportunity to work.

The mother in her submission reiterated her week on and week off proposal for [Z] to spend time with the father. Child care costs $25.00 a day, of which the father pays half. [Z] attends on two days a week[7]. However, the mother said that if she were to go to work, she would be charged a higher rate for child care, $40.00 instead of $25.00. Child care goes up to $70.00 a day.
[7] Mondays and Tuesdays
The mother spoke favourably about the paternal grandmother, Ms H, and the father’s sister, Ms E. She described Ms H as “great with [Z]” and Ms E as “great with [Z]” as well. She spoke in positive terms of Ms E’s new husband.
As for the child’s schooling, the mother confirmed that the child would be starting school in 2012. She raised the issue of school holidays and said that she would like to take a break during holidays.
As to her claim for spousal maintenance, the mother said that she receives child support from the father in the sum of $140.00 per week. She said that she could not obtain rental accommodation for under $550.00 per week. She has a debt of $1300.00 still owing for arrears of rent.
Essentially the mother said that she wanted a spousal maintenance order until the child [Z] started school, when she would be free to work full-time.

The Relevant law for Parenting Applications

Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) (which are the primary considerations) and 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
It is provided by subsection 60C(1) of the Act that each of the parents of a child who is not 18 has parental responsibility for the child.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for him or her.
Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)family violence.
Again, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for him or her (see s.61DA(4)).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether:
a)the child spending equal time with each parent would be in his[8] best interests; and
b)such an arrangement would be reasonably practicable.
[8] In this case
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of the child’s parents would be in his best interests; and
b)whether it would be reasonably practicable.
The term “substantial and significant time” is defined by subsection 65DAA(3) of the Act. It includes time spent with a parent both on days that fall on weekends and holidays, and those that do not. Whilst this is harder to ascertain in the case of children who are below school age, the term also requires the time that the child spends with the parent must allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child (see s65DAA(3)(b)).
The term “substantial and significant time” also requires that the time the child spends with the parent should allow the child to be involved in occasions and events that are of special significance to the parent (see s 65DAA(3)(c)).
When deciding whether equal time or substantial and significant time would be reasonably practicable, the Court must have regard to the matters in subsection 65DAA(5). They are:
a)How far apart the parents live from each other;
b)Their current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent;
c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing the arrangement;
d)The impact that the arrangement would have on the child; and
e)Any other matter the Court considers relevant.
I have considered all of those matters and I will refer specifically to those that are particularly relevant.

The Relevant Law for Spousal Maintenance Applications

Section 72 of the Family Law Act provides that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if and only if, that other party is unable to support himself or herself adequately whether;
a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
c)for any other adequate reason.
A party applying for spousal maintenance must show that he or she is unable to support herself adequately for one of the reasons set out in s.72 (see Slattery & Slattery[9].
[9] (1976) FLC 90-110-
The Court may make such order as it considers proper for the provision of maintenance (s.74(1)).
In exercising its jurisdiction under s.74, the Court must take into account only the matters referred to in s.75(2) of the Act, including:
a)the age and state of health of each of the parties;
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain;
e)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage (s.75(2)(na); and
f)a number of other matters, including any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account (s 75(2)(o)).
I have considered those matters, where they are relevant.

Conclusions

[Z] is a little boy aged four years and eleven months. He was born [in] 2006. He does not attend school yet but will do so next year. He attends child care on Mondays and Tuesdays.
He lives with his mother and spends time with his father by arrangement. There are communication difficulties between his parents.
The issues between the parties are:
a)The amount of time that the child spends with his father;
b)The establishment of a regular routine for [Z] to spend time with his father, taking into account the father’s rotating work roster;
c)Whether [Z] should spend equal time with each of his parents;
d)If he does not spend equal time with each parent, whether he should spend substantial and significant time;
e)The mother’s wish to obtain full-time employment;
f)Whether the father should pay spousal maintenance to the mother and, if so, the amount of such an order and its length of time.
The way to consider the issues between the parties is to consider first the proper parenting orders to be made. Until it is decided how much time the child spends with each parent, the issue of spousal maintenance cannot be properly decided.
The mother originally sought an order relating to child support in her response:
That the husband pay $150.00 per week by way of child support for [Z].
That application, which in effect would be a departure application, was not pressed. It was not in issue that the father is paying child support subject to an administrative assessment by the Child Support Agency, and it was conceded that he was voluntarily overpaying that amount.
The Court must regard [Z]’s best interests as the paramount consideration in deciding whether to make a parenting order.
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of his parents; and
b)the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
No evidence was led nor was any submission made that it would not be of benefit to [Z] to have a meaningful relationship with both his mother and his father.
The mother made some allegations at any interlocutory hearing about the father’s drug use, which the father denied. He annexed to an affidavit copies of blood and urine tests to support his contention that he was not using any illicit drug. I am not satisfied that there is any evidence that would lead to the inference that the child was at risk due to drug use by the father.
The mother alleged in her later affidavit that the father had a fierce temper and would scream at her in the children’s presence or hearing. There is no evidence that the father’s outbursts of temper, however severe they might have been, have had any effect on [Z]. The parties no longer live together. There is no evidence of any family violence order in force.
I am not satisfied that there is any evidence that would lead to the inference that the child is at risk of physical or psychological harm from family violence by the father or, for that matter, by the mother.
The child is not yet five years old. He is too young to express any views.
The evidence before the Court leads me to the view that the child has a good relationship with each of his parents. Neither party has offered any evidence to the contrary. It would be unlikely for the mother to press her claim that the parties should share the care of the child on an equal, week-about basis, if she were of the view that he did not have a good relationship with his father.
The father has made no criticism at all of the mother’s relationship with [Z].
Although there are no affidavits from any of them, the child has both paternal and maternal grandmothers and a paternal aunt, Ms E. There is no evidence that they do not have a good relationship with him. The mother has specifically told the Court that both the paternal grandmother, Ms H, and the aunt, Ms E, were “great with [Z]”.
[Z] has three half-sisters with whom he lives, [W], [X] and [Y]. They are the mother’s children from her first marriage. Although no specific evidence was led, it would appear that the child has a normal brother-sister relationship with each of the girls.
There is no evidence to suggest that the father is not willing or able to facilitate and encourage a close and continuing relationship between [Z] and the mother.
The evidence about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [Z] and his father is contradictory. On the one hand, the father complains in his affidavit of 16^th October 2009 that the mother has constantly made it difficult for him to spend time with [Z]. On the other hand, the mother complains about the difficulty of fitting in with the father’s rotating work roster. She has also sought an order that the parties should share the child’s care on a week-about basis, although the reason that she gives appear to be more to do with her desire to obtain permanent employment.
It is likely that the child would be adversely affected by any separation from either parent or from his grandparents. It is also relevant that [Z] lives with his three half sisters as well as his mother, and his relationship with them is also of importance. Ideally, he should spend time with his father when the three girls were with their father, so that he would be with his mother at the same times as the girls were with her. The girls are of school age, however, and [Z] will not start school until 2012.
There appears to be little in the way of practical difficulty or expense in the child spending time with his father, with the exception of the father’s rotating work roster, which is a complicating factor. The parties live in suburbs of Sydney which are reasonably close. The availability of the child’s paternal grandmother, and to some extent the paternal aunt, to assist with [Z]’s care is a factor that should be taken into account. One difficulty appears to be the poor level of communication between the parties. There was one altercation between them in court when they were making their submissions.
Both parents appear to have the capacity to provide for [Z]’s needs. The paternal grandmother also appears to have that capacity. There is almost no evidence at all about the maternal grandmother, other than that the mother said in her submission that she plays golf on Tuesdays.
[Z] is a little boy who was born [in] 2006. He will reach the age of five years on [date omitted] and will commence school in 2012. His parents are both from a mainstream Australian cultural background and there are no unusual factors about this child. He is neither an Aboriginal child nor a Torres Strait Islander (see s.60CC(3)(h)).
The father wishes to spend more time with his son and have an input into the child’s life. He complains that the mother frustrates this desire. She, on the other hand, says that she wants [Z] to spend more time with his father so that she can obtain employment. She would also like the father to spend time with [Z] so that she could have a break.
Whilst the mother has complained about the father’s temper and the way that he has ‘screamed’ at her in the past, there is no evidence of family violence and there are no family violence orders in force (ss.60CC(3)(j) and (k)).
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings between the parties in relation to the child. It appears clear that this child should be spending more time with his father on a regular basis. It would suit the mother to have some certainty as to when the child would be with his father, as that would make her employment options easier.
There is no evidence that either party has failed to fulfil their responsibilities as a parent (s.60CC(4)).
The parties have separated and their communication since separation has been poor and marked by acrimony. This has been aggravated by financial issues.
Although the parties’ communication remains poor, I am still of the view that it is in the child’s best interests for the parties to have equal shared parental responsibility. The father wants to have an input into his life and to spend more time with him. The mother would like the parties to share the child’s care, although the father says that this is impracticable because of his work roster.
I am not persuaded that it is reasonably practicable for [Z] to spend equal time with each of his parents, due to the father’s work commitments. Noting the low level of communication between the parties, their ability to cooperate to the extent necessary to make an equal time arrangement workable for the child and for themselves seems to be lacking. This would not be in [Z]’s best interests.
It appears to be generally accepted that for shared care on a week about basis to work successfully for the child, the parents must have a good level of cooperation and communication, and this does not appear to be the case here.
However, the Court must consider whether it is in [Z]’s best interests to spend substantial and significant time with each of his parents. I believe that it is in his best interests for him, especially when considering that time with the father would allow [Z] more opportunity to spend time with his paternal extended family.
A document was tendered at the hearing headed “Parenting Orders for [Z]” but it was not consented to. Nevertheless, it represents a guide as to the orders that the father seeks.
There needs to be a consistent arrangement for the time that [Z] spends with his father, so that there is some stability and predictability in his life. Such an arrangement should not clash with the time the mother’s other three children spend with their father, in order to ensure that [Z] spends time with his siblings.
The orders need to take note of the fact that [Z] will start school in 2012 and his routine must take preference over the father’s rotating work roster.
On the question of spousal maintenance, subsection 72(1) of the Act requires the applicant to establish that she has a need for spousal maintenance; she must show that she is unable to support herself adequately for one of the reasons shown in the subsection.
In my view, the relevant factors under s.75(2) are:
a)The father was born [in] 1977. He is 33 years old. He appears to be in good health.
b)The mother was born [in] 1977. She is 33 years old. She appears to be in good health.
c)The father has given evidence of an average weekly income of $1100.00. The mother has given evidence in her Financial Statement of a weekly income of $1120.00.
d)The child of the marriage, [Z], born [in] 2006, lives with the mother.
e)The mother has her three children from her previous marriage living with her and she has a responsibility to support them. Those children are aged ten, eleven and twelve years and attend school. Their father has been assessed to pay child support in the sum of $500.00 per week.
f)Neither party has re-partnered. The father has moved back in to live with his mother.
g)The father has been assessed to pay child support for [Z]. There is no issue between the parties that he has been paying the mother the sum of $140.00, which is slightly above the assessed amount.
The father has submitted that the mother is fit and able to work full time and the parties’ incomes are virtually equal. In my view, the difference between them is that the mother is the child’s primary caregiver and bears the general expenses of his upkeep. She deposes that she is struggling to make ends meet and cannot obtain permanent employment because [Z] is still below school age.
The mother will therefore be at a disadvantage in obtaining employment until [Z] starts attending school, at which time she will have more time available to her to work. She has therefore demonstrated a need for maintenance until [Z] starts school.
The father gives his expenditure as $866.00 per week and his income as $1100.00. He therefore has some capacity to pay maintenance.
I consider it proper to make an order that the father pay to the mother by way of spousal maintenance the sum of $120.00 until the child starts school or attains the age of 6 years, whichever shall first occur.
The application for a child support order, which was not pressed, will be dismissed.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 8 April 2011