HANLEY & HANLEY
[2011] FamCA 614
•5 August 2011
FAMILY COURT OF AUSTRALIA
| HANLEY & HANLEY | [2011] FamCA 614 |
| FAMILY LAW - CHILDREN – Parenting orders – parental responsibility – parties agree to have equal shared parental responsibility - the children would benefit from maintenance of their existing meaningful relationship with both parents - each parent is willing and able to facilitate close and continuing relationships between the children and the other parent –– no evidence of family violence or child abuse – children are immature – little weight attributed to the children’s views - the proposed parenting arrangements entail minimal disruption – parents residence are in close proximity – presumption of equal shared parental responsibility applies. FAMILY LAW - CHILDREN – with whom the children shall spend time – father seeks equal time – parents demonstrate an exemplary attitude towards children and the responsibilities of parenthood – equal time not an outcome immediately in the best interests of the children due to father’s work commitments – father’s work commitments impair his capacity to adequately physically care for and supervise the children for periods of time – father’s current work commitments to cease in the near future – order for equal time when father’s work commitments cease. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, |
| Goode v Goode [2006] FLC 93-286 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Hanley |
| RESPONDENT: | Mr Hanley |
| FILE NUMBER: | SYC | 7506 | of | 2009 |
| DATE DELIVERED: | 5 August 2011 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 29 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not Applicable |
| SOLICITOR FOR THE APPLICANT: | Miss Torrisi, Aitken Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bates |
| SOLICITOR FOR THE RESPONDENT: | Mullane & Lindsay |
Orders
The mother and father shall have equal shared parental responsibility for the children H, born … August 2001, and B, born … November 2003 (“the children”).
The children shall live with the parties as follows, unless otherwise agreed:
(a)Until the sale of the former matrimonial home situated at B Street, Town 1, NSW (“the former matrimonial home”) is completed:
(i)During the NSW public school terms:
(A)With the father each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Tuesday, commencing on the first Friday following these orders;
(B)With the father each alternate week from the conclusion of school on Monday until the commencement of school on the following Tuesday, commencing on the third Monday following these orders; and
(C)Otherwise with the mother.
(ii)During NSW public school holidays, with the father for the first half of the holidays and with the mother for the second half of the holidays when the holidays occur or commence in even numbered years, with the same arrangements in reverse when the holidays occur or commence in odd numbered years.
(b)Following completion of the sale of the former matrimonial home:
(i)Other than during the NSW Christmas public school holidays, with the father each alternate week from the conclusion of school on Friday until the conclusion of school on the following Friday, commencing on the first Friday following completion of the sale of the former matrimonial home, and with the mother during intervening weeks; and
(ii)During the NSW Christmas public school holidays, with the father for the first half of the holidays and with the mother for the second half of the holidays when the holidays commence in even numbered years, with the same arrangements in reverse when the holidays commence in odd numbered years.
For the purposes of implementation of Order 2, the NSW public school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to conclude at the commencement of school on the first day of the new school term, and the mid point is the day halfway between those first and last days.
Unless otherwise agreed, Order 2 is suspended during the following periods:
(a)From 9.00 am on 23 December until 9.00 am on 24 December each year, during which period the children will spend time with the father in odd numbered years and with the mother in even numbered years.
(b)From the conclusion of school on Friday until the commencement of school on the following Monday over each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
For the purposes of implementing Orders 2-4 hereof, the party with whom the children are to live or spend time shall collect the children:
(a)From school, whenever such time is to commence following the conclusion of school during school term, or
(b)From the residence of the other party whenever such time is to commence at a time other than the conclusion of school.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all outstanding applications for parenting orders are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hanley & Hanley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 7506 of 2009
| Ms Hanley |
Applicant
And
| Mr Hanley |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve a dispute over both property adjustment orders and parenting orders.
It was determined that the two aspects of the litigation should be severed and the competing proposals as to parenting orders finalised first.
These reasons determine the contested parenting orders, although it should be observed that the scope of the contest narrowed so substantially during the trial that one wonders why there needed to be a judicial determination at all.
The issues and evidence
It is simpler to start by acknowledging the wide ambit of the parties’ agreement, which only serves to vindicate the Family Consultant’s opinion about them, which was as follows:
The mother and the father are exceptional parents who are extremely insightful and are attuned to the emotional needs of the children. Both parents described the children in almost identical terms and their comments about each other’s parenting complimented the others.[1]
[1] Affidavit of Family Consultant, affirmed on 4 March 2011, Children and Parents Issues Assessment, page 4
The parties agreed that they should have equal shared parental responsibility for the children.
The parties also agreed that the children should either live or spend time with them both for substantial amounts of time.
The father proposed that the children live with the parties for equal time.
The mother initially proposed that the children live with her and spend substantial and significant time with the father, being either four or five nights each fortnight, but her ideas were quite fluid and her proposal remained flexible. By the time of final submissions, the mother agreed that the children should live for equal time with the parties, but not until after the father had vacated the former matrimonial home and ceased work in the livestock business conducted by him upon that property.
Consequently, by the completion of the evidence and submissions, the only issues to be decided were:
(a)Whether the children should begin living with the parties for equal time immediately, or only after the former matrimonial home was sold and vacated by the father; and
(b)When the equal time regime begins, whether it should operate on a weekly rotation, or be broken into smaller periods of each week, as the father primarily proposed.
In support of her proposal the wife relied upon her affidavit filed on 3 June 2011 and her parenting questionnaire filed on 12 April 2011.
In support of his proposal the father relied upon his affidavit filed on 2 June 2011 and his parenting questionnaire filed on 14 April 2011.
Both parties relied upon the evidence of the Family Consultant contained within her affidavit affirmed on 4 March 2011, upon which she was cross-examined. The affidavit was compiled by the Family Consultant following a single brief consultation with the parties and children on 3 March 2011. In view of the parties’ concurrence about the absence of need,[2] a comprehensive family report was not prepared.
[2] Notation A made on 27 April 2011
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode v Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children – primary considerations
Section 60CC(2)(a)
Both parties contended that the children would certainly benefit from maintenance of their existing meaningful relationships with both parties.
The parties did not cavil with the Family Consultant’s description of the children having “warm, loving and secure relationships with each parent”.
Section 60CC(2)(b)
Neither party contended that there was any need to protect the children from any harm through exposure or subjection to abuse, neglect, or family violence.
Best interests of the children – additional considerations
Section 60CC(3)(a)
The views expressed by the children are uniformly favourable to both parties. Each child wishes to spend substantial time with each party. As was observed by the Family Consultant, both children expressed much love and adoration for both parents.
Although the children presented to the Family Consultant as “well adjusted, intelligent, well mannered, [and] delightful”[3], they are still quite young. Their views should carry some, but not much, weight.
[3] Affidavit of Family Consultant, affirmed on 4 March 2011, Children and Parents Issues Assessment, page 3
The mother submitted that some of the children’s comments to the Family Consultant should be construed as a wish to spend more time with the mother than the father, but I do not accept that submission. The expressed desire to spend “more fun time” with the mother is merely a manifestation of the inequity that currently exists, where the children spend most week days with the mother and most weekends with the father.
Section 60CC(3)(b)
The quality of the children’s relationships with the parties has already been addressed. There is nothing to add.
There is no evidence about the children’s relationships with other members of the maternal and paternal families.
Sections 60CC(3)(c), (4)
The parties each have a willingness and ability to facilitate and encourage close and continuing relationships between the children and the other party. Such a conclusion is unavoidable having regard to the parenting proposals made by the parties at the conclusion of the trial.
The father initially complained about the mother’s seizure of control of the children following her departure with them from the matrimonial home in January 2010 and her unwillingness to compromise over arrangements for their care, but the mother’s perception of those events differs from the father’s. In any event, that mild conflict occurred in the context of restructure of family dynamics when the parties established separate residences. People rarely behave at their best at such times. The parties demonstrated their willingness and capacity to promote the children’s relationships with the other party by reaching agreement about parenting arrangements at a case conference shortly afterwards in February 2010.[4] They have adhered to those arrangements ever since without the need for any regulatory order from the Court.
[4] Mother’s affidavit, par 44
Both parties have availed themselves of every reasonable opportunity to exercise their parental responsibility for the children and to maximise their time with the children.
There is no complaint about either party’s failure to properly maintain the children.
Section 60CC(3)(d)
The changed parenting arrangements proposed by the parties for the children will entail little, if any, disruption. They already spend four nights per fortnight with the father, together with a period of hours on an evening between their longer visits to him. The orders expand that regime to five nights per fortnight, until the former matrimonial home is sold, when the regime is again expanded to equal time.
Neither party contemplates undue complication in the implementation of those arrangements, otherwise they would not have proposed the orders they did.
The father did express a preference for breaking down the equal time regime into smaller components than weekly units, on the basis that the children would then not be separated from either parent for as long as a week at a time. However, he submitted that he had no real quarrel with a weekly rotation.
The issue was put to the Family Consultant for consideration. She did not express a preference, asserting that the issue would really be dictated by the level of improvement in the parties’ willingness to communicate courteously, and their ability to inure the children from any of their conflict.
Given the Family Consultant’s acknowledgement that the children have already largely been spared exposure to the very mild conflict that has existed between the parties, that is not a matter of significant concern. Even though the mother clearly prefers not to speak with the father personally, she is more than willing to communicate in writing by email and text message. She said so.
The advantage offered by rotation on a weekly basis rather than shorter periods is fewer changeovers, and hence less inconvenience caused by the frequent movement of school books, equipment and sporting paraphernalia between households. That is a salient issue, particularly when most changeovers will be effected at school.
The children are now at an age and level of maturity that they do not need interaction with each parent more frequently than weekly in order to forge and retain parental attachments.
Section 60CC(3)(e)
The parties will remain living within reasonably close proximity of one another in the upper Hunter Valley. The parties will not therefore encounter any practical difficulty or expense in the implementation of the orders.
The mother has now abandoned her past inclination to move to Sydney.
When the former matrimonial home is sold and vacated by the father, he intends to find alternate accommodation in the same locality.
Section 60CC(3)(f)
There is no debate at all about the parties’ respective capacity to provide for the emotional and intellectual needs of the children.
The reason posited by the mother for the delayed introduction of an equal time regime is her contention that the father is not able to provide adequate physical care and supervision of the children whilst ever he retains responsibility for the conduct of the livestock business on the rural real property comprising the former matrimonial home. Her submission has merit on the evidence adduced.
The business conducted by the father from the former matrimonial home entails breeding and selling livestock. The work is seasonal. The breeding season, which generally encompasses the months between spring and autumn, is the busiest. During that period the father is required to be “on call 24 hours per day” for “7 days per week”.[5] That ordinarily entails commencement of work at 5.30 am,[6] and because of the number of times mares are serviced by stallions during the course of each day, the father conceded in cross-examination that he often does not finish work until late in the evening.
[5] Exhibit M2
[6] Father’s affidavit, par 55
In the “off season”, the father’s schedule is much less demanding, requiring his attendance to duties only between 7.00 am and 4.00 pm each day.[7]
[7] Father’s parenting questionnaire, Q.4
Such work commitments are incompatible with parenting orders that would require the father’s sole and exclusive care for the children on school days, when the children could not accompany the father around the farm and to auction sales. The father could probably not attend to all of the children’s needs on school days while he was otherwise busily engaged.
It is common ground that the farm should be sold forthwith in order to enable a proper adjustment of property interests between the parties. To that end the parties have made inquiries about the engagement of a real estate agent to market the property. The agent inspected the property in May 2011 and produced a marketing submission for the parties’ consideration. The parties are satisfied with that submission and expect to engage that agent imminently. It is intended that the marketing campaign will culminate in the spring, when the property will be at its best, and the parties are hopeful that a sale will be achieved before Christmas. Self-evidently, a sale will certainly be achieved provided the parties agree to accept the best price offered.
It is also common ground that, once the farm is sold, the father will cease his current work practices. That is because it will be impossible for the father to continue conducting the livestock business without the benefit of the farm upon which to breed and raise the livestock. The mother admitted in cross-examination that the assertion to the contrary in her affidavit[8] was a mistake. She conceded the business could not be conducted without the farm.
[8] Mother’s affidavit, par 46
Once the father ceases business and vacates the farm, he will find alternate residential accommodation in the same locality. He told the Family Consultant that, and confirmed it both in his affidavit evidence[9] and in oral evidence. He was not challenged on the issue and the mother later acknowledged in cross-examination she knew that was the father’s intention.
[9] Father’s affidavit, par 12, 59
Although the father’s future vocational plans are only at a formative stage, it is his present intention to conduct a consultancy business from his new residence, re-train for other employment in the area, or conceive a small business which will acquire work in the resources industry within the area. The father contended that he would only embark on a new vocation which was flexible and enabled him to care for the children for equal time, subject to any assistance needed from his network of friends. The father guaranteed that he would not engage in further work as a “hands on [livestock] person”. The father was not challenged about any of that evidence.
In the face of that unchallenged evidence, the mother’s past belief that the father would take up alternate employment in the livestock industry, thereby precluding his availability for the children,[10] is unfounded. The mother admitted in cross-examination that she did not know what form of work the father would pursue upon sale of the farm.
[10] Mother’s affidavit, par 64
In those circumstances, once the father relieves himself of his current onerous business responsibilities upon the farm, he will have sufficient time to devote to the full-time care and supervision of the children under an equal time regime, and any opposition by the mother to such an arrangement necessarily falls away because that was the only reason for her opposition.
It is unexceptional that the father might still need to call upon assistance from his network of friends to cater to all the needs of the children. The mother already makes use of such resources, as she presently relies upon a friend to walk the children to school on the mornings that the mother works in the education field in another township. Despite any reservations the mother might have about the father’s reliability to select an appropriate person to assist him,[11] I am quite satisfied about his sense of responsibility.
[11] Mother’s affidavit, par 63
Section 60CC(3)(g)
There was no aspect of the parties’ maturity, sex, lifestyle, or background that was contended to be influential in the outcome of the proceedings.
Section 60CC(3)(h)
Neither party identified themselves or the child as Indigenous Australian.
Sections 60CC(3)(i), (4)
Each party demonstrates an exemplary attitude towards the children and the responsibilities of parenthood.
The faint suggestion by the mother that the father’s attitude is deficient because he failed to supervise the children properly is groundless. She would not agree to the children living with the father for equal time, or even spending substantial and significant time with him, if she genuinely believed their safety was at risk in his care.
Section 60CC(3)(j)
There is no evidence of any family violence at any point in time.
Section 60CC(3)(k)
No family violence orders have ever been made.
Section 60CC(3)(l)
The narrowness of the ultimate dispute between the parties suggests that further litigation over the children is unlikely, irrespective of the outcome.
Section 60CC(3)(m)
Other than the issues already addressed, it was not contended that any other fact or circumstances would influence the Court’s determination.
Orders
The parties petitioned the Court for an order allocating to them equal shared parental responsibility for the children. Having regard to the evidence of the Family Consultant, I am satisfied that the presumption of equal shared parental responsibility should apply (s 61DA(1),(2)) and is not rebutted (s 61DA(4)).
It therefore follows that the Court must consider making orders providing for the children to live for equal time with each party (s 65DAA(1)). Only in circumstances where such an outcome would be contrary to the best interests of the children, or otherwise not reasonably practicable, would such a result not follow.
For reasons already explained, equal time is an eminently practicable regime because of the proximity of the parties’ homes and the obvious ability of the parties to co-operatively parent the children. The evidence proves it. Simple examples are the cordial email correspondence between the parties[12] and their joint attendance with the eldest child at his hearing test.[13] The Family Consultant was similarly confident about the capacity of the parties for harmonious commitment to the children.
[12] Exhibit M1
[13] Exhibit F2
Equal time is not an outcome which is currently in the best interests of the children by reason only of the father’s business commitments, which impair his capacity to adequately physically care for and supervise the children for prolonged periods. However, those work commitments will soon cease, whereupon the father will be able to devote adequate time to the care and supervision of the children whilst they live with him. When that occurs, an equal time arrangement will also meet the children’s best interests.
For those reasons, the orders require the children to live with the parties pursuant to a parenting regime generally consistent with the mother’s proposal until such time as the sale of the former matrimonial home is complete. The parties presently expect the sale to be completed before Christmas, so that parenting regime will likely have a finite application of only several months. Thereafter, the orders implement an equal time parenting arrangement.
Although the orders proposed by the mother in her Amended Application did not provide for the children to stay overnight with the father during the period between their weekend visits with him, in cross-examination the mother said that she was prepared to entertain the prospect of that stay being extended from a few hours, as she proposed, to an overnight stay. Such a concession was consistent with the Family Consultant’s view that an overnight stay at that time was appropriate and preferable.
The orders allow for the children to see each party close to Christmas, but ensure that the children spend Christmas Day with one party or the other. That arrangement is designed to address the evidence elicited from the mother in cross-examination to the effect that both parties spend the Christmas period away from the region with their respective families of origin and so the children should annually rotate the Christmas period with the parties.
Otherwise, apart from those orders relating to the time spent by the children in the care of the parties, the mother consented to all other orders proposed by the father in his Response.[14] Some orders have been made consistently with the orders proposed by the father, which now enjoy the mother’s consent.
[14] Mother’s affidavit, par 13
However, no orders have been made about telephone communication between the children and the parties. That does not mean there should be no such telephone communication. The children already freely communicate with the parties by telephone by agreement between the parties, and so there is no need to regulate such arrangements by formal order.
Nor is any order made regulating the parties’ communication about issues related to major-long term issues in the children’s lives. The parties can deal with that as an incident of the mutually requested equal shared parental responsibility without the need for specific orders.
The parties’ intelligence and insight plainly suggests that they need less, not more, regulation by the Court.
I am satisfied that the orders reflect the best interests of the children.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Friday, 5 August 2011.
Associate:
Date: 5 August 2011
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