Hanlon and Hanlon
[2018] FCCA 49
•12 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANLON & HANLON | [2018] FCCA 49 |
| Catchwords: FAMILY LAW – Where a five-year-old child has been living with each parent on a week about basis for almost four years – where the parents live 155 kilometres apart – where the child will begin school in 2018 – where the parents cannot agree where the child will live and attend school. |
| Legislation: Family Law Act 1975 (Cth), ss.64B, 60B, 60CA, 60CC, 4AB |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 Tait & Densmore [2007] FamCA 1383 |
| Applicant: | MS HANLON |
| Respondent: | MR HANLON |
| File Number: | DGC 2568 of 2016 |
| Judgment of: | Judge Small |
| Hearing dates: | 20 & 21 June 2017 & 19 September 2017 |
| Date of Last Submission: | 19 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 12 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conlan |
| Solicitors for the Applicant: | Tyler Tipping and Woods |
| Counsel for the Respondent: | Mr Pavone |
| Solicitors for the Respondent: | Lander and Rogers |
ORDERS
All previous orders in relation to the child X born (omitted) 2012 (“the child”) are hereby discharged.
The parties shall have equal shared parental responsibility for the child.
Until the commencement of the 2018 school year, the child shall continue to live with the parties in the current week-about regime.
From 4:00 p.m. on the Friday before the commencement of the 2018 school year the child shall live with the mother.
From the commencement of the 2018 school year the child shall spend time and communicate with the father as follows:
(a)during school terms from the conclusion of school (or 10:00 a.m. if a non – school day) on Friday until 5:00 p.m. on Sunday on the first, third, and, if applicable, the fifth weekends of each month commencing on the first Friday of the 2018 school year;
(b)for half of the First and Third Term school holidays as agreed between the parties in writing and in default of agreement the first half from the conclusion of school on the last day of term until 5:00 p.m. on the second Saturday of the school holidays;
(c)for two weeks in the Second Term school holidays each year as agreed between the parties in writing and in default of agreement such time shall commence at the conclusion of school on the last day of Term Two and conclude at 5:00 p.m. fourteen days later;
(d)during the long summer school holidays in 2018-2019 for three weeks as agreed between the parties in writing and in default of agreement, for the two weeks commencing at 5:00 p.m. on Boxing Day 2018, and for a further week commencing at 5:00p.m. on the second last Friday of the holidays;
(e)for half of the long summer holidays in 2019-2020 and in each year thereafter as agreed between the parties in writing, and in default of agreement for the first half in even numbered years commencing at the conclusion of school on the last day of the school year, and the second half in odd numbered years concluding at 5:00 p.m. on the Friday before the commencement of the school year;
(f)from 2:00 p.m. Christmas Eve until 2:00 p.m. on Christmas Day in 2019 and each alternate year thereafter and from 2:00 p.m. on Christmas Day to 5:00 p.m. on Boxing Day in 2018 and in each alternate year thereafter;
(g)from 5:00 p.m. on the night before Father’s Day to 5:00 p.m. on Father’s Day each year;
(h)at times to be agreed and failing agreement from 10:00 a.m. to 2:00 p.m. on the Saturdays closest to the child’s birthday, the father’s birthday, the step-mother’s birthday and the child’s paternal sibling’s birthdays each year;
(i)at all reasonable times by telephone, Skype, Facetime or other forms of electronic communication, but no less frequently than on each Wednesday and Saturday that the child is not in the father’s care; and
(j)at such other times as may be agreed between the father and the mother in writing.
The father’s time pursuant to paragraph 5 hereof shall be suspended, if necessary, as follows:
(a)from 2:00 p.m. Christmas Eve until 2:00 p.m. on Christmas Day in 2018 and in each alternate year thereafter;
(b)from 2:00 pm on Christmas Day to 5:00 p.m. on Boxing Day in 2019 and in each alternate year thereafter;
(c)from 5:00 p.m. on the night before Mothers’ Day; and
(d)at times to be agreed and failing agreement from 10:00 a.m. to 2:00 p.m. on the Saturdays closest to on the Mother’s birthday, the step-father’s birthday and any maternal half-siblings’ birthdays each year.
The time specified in paragraph 5(a) hereof shall suspend during all school holidays and shall recommence upon the commencement of the next school term as if the holidays had not intervened.
Where the father’s time with the child is expressed to commence at the conclusion of school, he or his wife or an agent approved by the mother shall collect the child from his school unless another venue is otherwise agreed in writing at least 48 hours prior to the commencement of such time.
All other changeovers shall occur at a venue to be agreed between the parties in writing and failing agreement, at the mother’s residence at the commencement of time and at the father’s residence at the conclusion.
The parties shall forthwith do all such acts and things and sign all documents as may be necessary to enrol the child to attend (omitted) Primary School, or such other school as they might agree in writing, from the commencement of the 2018 school year, and for the sake of clarity, (omitted) Primary School if there is no agreement on an alternative school.
The parties and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother or father to or in the presence or hearing of the child and from permitting any other person to do so;
(b)discussing these proceedings with or in the presence or hearing of the child (save to explain the change in his living circumstances to him) and from permitting any other person to do so; and
(c)allowing the child to read, or have read to him, any portion of the Court’s Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Hanlon & Hanlon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MORWELL |
DGC 2568 of 2016
| MS HANLON |
Applicant
And
| MR HANLON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve the future care arrangements for the child X born (omitted) 2012 (“X” or “the child”).
The Applicant is X’s mother, Ms Hanlon born (omitted) 1982 (“Ms Hanlon” or “the mother”), and the Respondent is his father, Mr Hanlon born (omitted) 1982 (“Mr Hanlon” or “the father”).
Since about January 2014, X has lived with each of his parents on a week about basis.
As he is now aged 5 he will start school in 2018, and because of the distance between the parties’ homes (about 155 kilometres), it is not practicable for him to continue living with each parent week about.
The parties simply cannot agree on where and with whom X should live and each seeks orders that he live with her/him. They are agreed that they should continue to exercise shared parental responsibility for X.
Therefore, the issues in this case are relatively straightforward:
A.Should X live primarily with his mother or his father?
B.How much time and in what configuration of time should he spend with the non-resident parent?
Background
The parties commenced living together in approximately 2008 and were married on (omitted) 2010.
They separated in September 2013 when the mother left the family’s home in (omitted) and moved to the (omitted).
X is the parties’ only child together.
The father has since remarried and he and his wife, Ms J, have one child, A (“A”), who was born in (omitted) 2016. Ms J has two children from a previous marriage, B aged 14 (“B”), and C aged almost 15 (“C”), who live with her and the father in rented accommodation in (omitted). B and C spend little time with their father. X lives in that household every second week.
The mother currently lives with her parents on their farm at (omitted), and X lives there every second week.
The mother has also re-partnered with Mr L (“Mr L”). They intend to buy a block of land in (omitted) and to build a home on it.
The father is self-employed as a director of a (business omitted) and the mother is a (occupation omitted).
At the time of trial, the father was working full time, but working from home on two or three days per week, while the mother was working as a (occupation omitted) an average of four morning or afternoon shifts per week.
Procedural History
Ms Hanlon commenced proceedings in this Court by way of Initiating Application filed on 22 August 2016 for Final Parenting Orders.
The material relied upon by the mother consists of her Affidavit filed 22 May 2017, the Affidavit of her partner Mr L filed 15 June 2017, the Affidavit of her mother Ms K filed 15 June 2017 and the Affidavits of Dr S filed 13 February 2017 and 5 June 2017.
The material relied upon by the father consists of his Amended Response filed 5 June 2017, his Affidavit filed 5 June 2017, the Affidavit of his wife Ms J filed 5 June 2017, and the Affidavits of Dr S filed on 13 February 2017 and 5 June 2017.
The mother filed a supplementary Affidavit on 9 September 2017 but as the matter was part heard, I did not grant leave for that to be filed and I have not read that Affidavit.
The trial began at Morwell on 20 June 2017 and was adjourned part-heard on 21 June to 19 September at the next circuit sittings of the Court.
At the conclusion of the evidence and submissions on 19 September 2017, I reserved my decision.
Issues and Evidence
Issue A: Should X live primarily with his mother or his father?
Each of the parties, at various times during the proceedings, was critical of the other’s parenting skills and/or personal emotional difficulties, and it is clear that there has been considerable conflict between them both during their relationship and since their separation.
However, the evidence before the court, in the form of the affidavits and oral evidence of the parties and their witnesses, and the family report and oral evidence of Dr S (“Dr S”), is that both parents are loving and competent parents to this child. They both love him dearly, care for him appropriately and delight in his company.
This is therefore a very finely balanced case, particularly in circumstances where X has lived with his parents on a week about basis for most of his life and by agreement between them. That indicates that both parents see the other as a suitable parent for X, and if they did not live so far apart, the week about arrangement would most likely have continued throughout X’s childhood and adolescence.
In circumstances where that is not possible, I will approach my decision within the framework of the law, as there is no one “knockout” factor in the evidence that would lead the court to decide that he should live with one parent or the other.
Of course, a consideration of the law will require me to address the evidence in the context of the law, and it should not be assumed that I have not considered a piece of evidence if it is not specifically mentioned in this judgment. I have read all affidavit material filed in this matter, and in addition to the impressions I gained of the parties at trial, I have had the benefit of reading the entire transcript of the proceedings.
The Law
The orders sought by the parties are parenting orders pursuant to s.64B of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parenting orders is set out in Part VII of the Act.
The objects and principles underlying Part VII are set out in s.60B and I set those objects and principles out here for the benefit of the parties:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests.
Section 60CC then sets out 16 separate factors that the court must consider when it is considering what orders to make in the child’s best interests, and I will address each of these factors in turn.
There are two “Primary considerations” and they are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The question of what constitutes a “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia.
In Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
[…] a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In other words, it is not the amount of time that a parent spends with a child that makes it “meaningful” – it is the quality of that time.
In Tait & Densmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
It is clear from the evidence in this case, and especially the independent evidence of Dr S, that the relationship between X and each of his parents is certainly “meaningful” in the terms set out in Mazorski v Albright and Tait & Densmore, and that X benefits greatly from those relationships
X has, at times, been exposed to the conflict between his parents, but it would appear that the parties are much more aware than most of the negative impact that exposure has on X, and there have been fewer of those occasions lately.
It is very important that the parties understand that if X does not transition smoothly between them, and in particular if he is prevented from doing so by the parties expressing their differences verbally at changeover, then changeover will be a time of distress and pain for him rather than being just another regular event in his life.
The “Additional Considerations” set out in s.60CC(3) are as follows:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Dr S does not indicate any views expressed by X in relation to where he should live in the future in his family report dated 17 January 2017. Even if he had, and X’s views had been clear, his young age means that little weight would have been given to those views.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Dr S describes close, warm and attached relationships between X and both of his parents.
There is also evidence before the court that X has a very close relationship with his maternal grandparents and aunt on his mother’s side, and with his stepmother, stepsiblings and half-brother on his father’s side.
In his mother’s home, X is an only child, whereas in his father’s home he is the second youngest of four children, and the only child who is not the biological child of the mother of the other three.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parties have been intimately and consistently involved in participating in making the major decisions to be made for X. Their inability to decide where X should live and go to school from the beginning of the 2018 school year is not an indicator of their lack of commitment to that role, but rather a genuine inability to agree about what is best for X.
Similarly, both have taken every opportunity to spend time with X, and to communicate with him appropriately when he has been living with the other parent.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The parties separated in September 2013 when X was not quite one year old. At that time Mr Hanlon began paying Ms Hanlon monies for Ms Hanlon’s and X’s support.
Ms Hanlon moved into rental premises in the (omitted) with X, relying on those payments.
However, those payments ceased in October 2015 when Ms Hanlon told Mr Hanlon that she would not be moving back to Melbourne.
At trial, the following exchange took place between the father and counsel for the mother when counsel asked the father to provide a chronology of his child support payments at about that time:
Mr Hanlon: Anyway, sometime in 2015. So she notified me that she was no longer moving to Melbourne and that she was seeking custody of X. I said I don’t think that’s a good idea. X needs a shared care. You were going to move to Melbourne so we could continue shared care, which is what’s in X’s best interests, and at that late stage I said, yes, I’m – I’m not – no longer going to be contributing to paying for your car.
Counsel: Yes. And you said to Dr S, at paragraph 41, that you stopped paying child support when she said she was taking legal proceedings. That’s what you said to Dr S – paragraph 41?
Mr Hanlon: it was – I think it was probably before that. That’s probably what I said to Dr S, yes.
I interrupted counsel’s next question to ask Mr Hanlon what the connection was between the mother moving back to Melbourne and his child support responsibilities.
His answer was that he didn’t feel as though he had any child support responsibilities at that time because he had been assessed as having a nil liability by the Child Support Agency.
He agreed that that assessment was the result of him having a taxable income at that stage of $21,000 per year.
Upon my question being asked again by counsel, Mr Hanlon said that he had “felt like I would need to pay for a lawyer”.
When it was pointed out to him that Ms Hanlon had not sought a formal assessment but had agreed to enter into a private arrangement, and that she had not issued proceedings until August 2016, he conceded that he was not paying lawyers and there had been no necessity for him to cease providing support for Ms Hanlon and X in October 2015.
The following exchange then took place:
Counsel: So you could have continued?
Mr Hanlon: Yes.
Counsel: But you didn’t because you were cross with her that she wasn’t doing what you wanted her to do, and so you stopped paying?
Mr Hanlon: Sure.
[…]
Counsel: And so you punish X’s mother when she goes against your wishes by denying her financial support; do you agree with that?
Mr Hanlon: That could be viewed as that.
Counsel: Yes. And do you understand that is actually financial abuse?
Mr Hanlon: No, I didn’t know that.
Counsel: Well, it is. And do you understand that it’s actually a form of family violence?
Mr Hanlon: I didn’t know that, no.
Counsel: Okay. Because the result of you stopping financially supporting X and his mother was that she was forced to move back in with her mother because she was a student at the time, so it had a direct impact upon X. Do you understand that?
Mr Hanlon: I do.
Counsel: Did you take that into account when you denied the mother that money – the impact on X?
Mr Hanlon: Yes. So when she said she was moving back in with her mother I was – I was pleased with that.
Counsel: Okay. So that was something you wanted?
Mr Hanlon: I was okay with that. I thought that she would be okay.
Counsel: Okay. But you didn’t factor in --- ? (sic in transcript)
Mr Hanlon: No, I didn’t. I didn’t think that through, no.
Counsel: So you didn’t really think – you didn’t really think about X at all in that decision. That decision was about you punishing X’s mother for not doing what you wanted?
Mr Hanlon: No, it was not – not punishment. As I said in my – my affidavit, I was preparing to take ---
Counsel: In anticipation of legal proceedings?
Mr Hanlon: Yes.
Counsel: But at that time there were no legal proceedings, so the only impact was to deny her financial support?
Mr Hanlon: Okay. Yes.
The above exchange does not reflect well on the father, as not only did he cease paying for X’s support without full regard to the impact that would have on X, but he appears to have done so on an impulse and in retaliation for the mother saying that she would not be moving back to Melbourne.
Nevertheless, there do not have appear to have been any other issues in relation to child support as neither party pays any monies to the other for X’s financial support, although of course each supports him financially while he is living with them, that is for half of the time.
Of course, that situation may change as a result of these proceedings.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Whatever decision I make in relation to X’s living arrangements as he enters his school years will have a clear and profound effect on him. He has been used to spending his life equally with each parent and now he will be living primarily with one and spending time with the other. The impact of that change will need to be handled carefully and sensitively by both X’s parents.
In addition, if I decide that he should live with his mother, he will be separated for much of the time from not only his father, but his stepmother, two stepsiblings and his half-brother, all of whom have become part of his everyday life when he is living with his father.
If I decide that he should live with his father, he will be separated for much of the time not only from his mother, but from his maternal grandparents, and particularly his maternal grandmother, whose house is X’s home for half the time, and with whom he is said to have a particularly close relationship. He would also be moving away from his maternal aunt with whom he is also said to have a close relationship.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
As I have already stated, the parties live 155 kilometres apart. That distance alone makes continuation of the current equal shared care arrangement impossible once X begins school.
It was Dr S’s clear recommendation, both in the family report and at trial, that it would be in X’s best interests for his parents to live much closer together so that the equal shared care arrangement could continue.
However, neither party is prepared to move and so X’s time with one parent will be diminished and his time with the other expanded as a matter of necessity.
Of course, that does not mean that the quality of his relationships with his non-resident parent and the members of that parent’s household will be any less important to him as he grows older.
X is now five years old, and it was Dr S’s opinion that his relationship with each of his parents was well attached, loving and nurturing for him. He is therefore likely to be able to hold those relationships securely, despite not spending as much time with one of his parents as he has been used to.
The practical difficulty resulting from the distance between the parties means that it will be difficult to provide time for X and his non-resident parent that includes midweek time. That is, the practical reality is that X will spend, in general, only weekend and holiday time with his non-resident parent, although if that time commences at the conclusion of a school day, the non-resident parent might well be able to be involved in X’s school activities, subject of course to work commitments.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that either parent is unable to provide for X’s material needs. That is, he has secure shelter, he is well fed and well clothed in both households, and appears to lack very little in that area of his care.
It is in the area of the parties’ capacity to meet his emotional needs that the court has some concerns, albeit fairly minor ones.
Both parents are said to have experienced some mental health issues in their lives, although there was no suggestion that either is currently untreated for any such condition or that either shows any current symptoms of such a condition.
The mother has behaved historically in a somewhat obsessive fashion, sending multiple emails or text messages to the father and expecting instant responses, while the father impresses as a man who needs to be in control of his environment, and has behaved accordingly, although not to an excessive extent.
Both have at times made unreasonable demands on the other with more focus on their own needs than on X’s.
Nevertheless, they have raised a young boy who by all accounts is charming and delightful and that is very much to the credit of all his caregivers.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
As I have stated above, the parents have at times, and mostly in the past, behaved with less maturity than might be expected of adults.
However, it is to be hoped that the process of being cross-examined by two very competent counsel, and hearing what I said to them during the trial, will have made them more aware of the need for them to display maturity in their interactions for X’s sake.
There do not appear to be any cultural issues in this matter, although I note the difference in the parties’ parenting styles in this context.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor in these proceedings.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
This child simply could not be more loved and treasured by his parents and extended family. The parents have displayed that love throughout X’s life and, apart from Mr Hanlon cutting off support payments to Ms Hanlon when she decided not to live in Melbourne, which resulted in Ms Hanlon having to give up her rental property and move back to the home of her parents with X, they have exhibited an attitude to their parenting of X that indicates thoughtfulness and care about every aspect of his life.
Nevertheless, each has alleged what could be termed reckless behaviour by the other in their care of X, the father having allowed him to be on a bicycle without a helmet and the mother having driven with X in the back seat without an appropriate child restraint.
I note, however, that both situations appear to have been “one-offs” and that both parents indicated insight into the inappropriateness of their behaviour on those occasions. There is no genuine suggestion that X is at risk in either party’s care.
(j)any family violence involving the child or a member of the child’s family;
The mother’s affidavit material asserts that the father’s behaviour has included some verbal, emotional and financial abuse of her, despite her Outline of Case Document stating that s.60CC(3)(j) does not apply in this case.
I have already dealt with the issue of financial abuse which occurred after the parties’ separation.
The allegations in relations to the father’s controlling behaviour were at best minor in nature, but I gained the impression from the father during his evidence that he is a man who feels the need to be in control of his environment and who likes to be seen as a rational person.
There is evidence in tendered text message exchanges between the parties that each has engaged in quite serious verbal abuse of the other in relation to their relationship and their care of X. Even if X never sees those messages, they certainly fall under the definition of family violence set out in s.4AB of the Act.
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no evidence of any family violence orders having been made between these parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The order I make as to X’s place of residence will define where he lives for at least his primary school years and is therefore unlikely to lead to further proceedings, which is always preferable.
(m)any other fact or circumstance that the court thinks is relevant.
Both parents are engaged in work, with the father’s evidence being that while he works full-time hours, he works from home on an average of two or three days per week, although there are some weeks when he works from his office in the city on all five days per week. When he works from home, although he is able to contribute to caring for the four children of the household, his wife takes on the majority of that work. It is Mr Hanlon’s evidence that he would be able to take X to school and collect him on most days, although it is clear from his evidence at trial that that might be a rather optimistic view.
The mother is a (occupation omitted), having gained that qualification after a period of study at the end of 2016. It is her evidence is that she will be able to organise her working hours so that she works on three or perhaps four days per week while X is at school.
Her shifts are either the morning shift, from about 7:00 a.m. to 3:00p.m., or afternoon shift, from about 2:00 p.m. to 10:30 p.m. That has some considerable effect on her availability to take care of X in the mornings or afternoons on those days, but X’s maternal grandmother is available and able to take him to and pick him up from school when the mother is working.
In other words, the work of both parents means that each will need to rely on another family member (both of whom are said to have an excellent relationship with X) to care for him either before or after school on some days.
Another consideration is that X is one of four children in his father’s household, whereas he is an only child in that of his mother. There are advantages and disadvantages to both situations.
While the evidence indicates that Ms J, who of necessity is the primary parent in her household, is a more than capable parent to all four of the children in her household, her time is inevitably divided among those four children. I note that the evidence is that Mr Hanlon works from home on several days per week, but it was his evidence under cross-examination that on those days, he works in his study and his wife looks after the children most of the time.
On the other hand, it can be said that a child who grows up with other children learns more about sharing and compromise than only children.
In his mother’s household, X is cared for by his mother and maternal grandmother who have no such division of their time. He lives on a farm with all the advantages that brings in terms of space and of learning about the natural world.
It is the mother’s evidence that the school X would attend is close to her parents’ property and that X would eventually be able to walk safely to and from school without crossing any main roads.
The above comments should not be taken as a criticism of Mr Hanlon’s life choices, but merely as an observation about the practicality of the parties’ current situations as they impact on X.
In addition, I have, of course, taken due notice of the evidence of Dr S, who provided a family report and updated comments when requested to do so by the parties.
Dr S was subjected to comprehensive cross-examination at trial by counsel for both parties, who interrogated his wording and intention to a considerable degree.
Dr S was not prepared to make any recommendation as to which parent would have the majority care of their son, despite concerted efforts by counsel to get him to do so.
However, it was his clear recommendation, set out in his report and confirmed at trial, that X’s optimal interests would be served by the parents, or one of them, moving closer to the (or each) other so that the current shared care regime could continue.
Clearly that is not possible in current circumstances as, unfortunately for X, neither party is prepared to move.
Conclusion: Issue A
When I consider my impressions of the parties in the witness box, weigh up all the evidence in this matter and apply the law as set out above to it, I find that X’s best interests in the circumstances of this case are served by him living primarily with his mother.
That decision should not be seen as a criticism of the father’s parenting style or circumstances, and I will ensure that X spends as much time with him as is practicable.
My decision is based on my impression of the mother as a woman who experiences some anxiety under stress, but whose life has settled into one of stability and security. She has undertaken study post separation and become qualified as a (occupation omitted).
The father impresses as a man who is somewhat more self-focussed than is the mother, and who already has a large responsibility to support and maintain his new wife, her adolescent children and his now almost two-year-old son on a modest taxable income, although it was his clear evidence at trial that he is able to meet all his financial commitments.
While there are many advantages and some disadvantages to each parent’s household in terms of X’s care, I find that it is in his mother’s home that he is more likely to receive more individual attention and the advantages of a country upbringing.
Issue B: How much time should X spend with his father
Fortunately, the parties are in some agreement about the amount of time each should spend with X were their Applications to be accepted.
The mother’s proposal is found in her Outline of Case Document filed 20 June 2017, where the final orders she seeks in relation to X’s time with his father are:
3. THAT the child spend time and communicate with the father as follows;-
a. From 3.30pm on Thursday until 3:30pm on Sunday and in each alternate week thereafter until the child commences school;
b. After the child has commenced school; -
i. From the conclusion of school (or 3:30pm if a non-school day) on Friday until 4pm on Sunday each alternate week;
ii. for half of school term holidays and long summer holidays at such times as agreed and in default of agreement the first half commencing 12pm on the first Saturday of the school holidays;
c.From 9 until 5pm on Father’s Day;
d. From 2pm on Christmas Eve until 2pm on Christmas Day in the year 2017 and in each alternate year thereafter;
e. From 2pm on Christmas Day until 2pm on Boxing Day in the year 2016 and each alternate year thereafter;
f. At all reasonable times by telephone, skype or other form of electronic communication;
g. Such other times as agreed between the parties in writing.
4. THAT the Father’s time spent pursuant to paragraph 3 above be suspended as follows:
a.From 9am until 5pm on Mother’s Day;
b.From 2pm on Christmas Eve until 2pm on Christmas Day in the year 2016 and each alternate year thereafter;
c.From 2pm on Christmas Day until 2pm on Boxing Day in the year 2017 and each alternate year thereafter.
The father’s proposal, as set out in his Outline of Case filed 16 June 2017, essentially mirrors that of the mother.
At trial it was agreed that the parties would accept orders providing for X to spend the whole of the Second Term school holidays each year with the non-resident parent and I will make orders in those terms.
Conclusion: Issue B
X will spend time with his father as often as is practicable given the distance between his parents’ homes, and essentially in accord with the mother’s proposal, although some details will be slightly different.
For instance, I will make orders for X to spend time with his father not on “each alternate weekend”, but on “the first, third, and, if applicable, the fifth weekends of each month”, and he will return to his mother’s care at 5:00 p.m. on Sundays when he is spending the weekend with his father.
That will mean that on those occasions when there are five weekends in a month, X will spend two consecutive weekends with his father (the fifth of one month and the first of the next).
Conclusion
This has been an extremely difficult decision.
Both parents are appropriate and loving parents to X and each has much to offer him.
However, the decision by each not to move his or her residence so that the present equal shared care regime could continue, a proposal I note that Dr S thought was the optimum one for X, made it necessary for the court to make the decision.
I have done so based on the evidence contained in the affidavits filed by the parties, their witnesses and Dr S, and on the evidence adduced at trial as set out in these Reasons.
While this is not the decision X’s father had hoped for, I hope that he will accept it, deal with his inevitable disappointment in a constructive manner, and co-operate with X’s mother to ensure that X’s transition to the new living regime and to school are as smooth as possible.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 12 January 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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