Harris and Harris
[2009] FMCAfam 81
•9 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARRIS & HARRIS | [2009] FMCAfam 81 |
| FAMILY LAW – Children – choice of school – equal shared care – substantial and significant time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60DA, 60DAA |
| H and H (2003) FLC 93-168 |
| Applicant: | MS HARRIS |
| Respondent: | MR HARRIS |
| File Number: | MLC 12679 of 2007 |
| Judgment of: | McGuire FM |
| Hearing dates: | 19, 22 & 23 December 2008 |
| Date of Last Submission: | 23 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 9 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stewart |
| Solicitors for the Applicant: | Aughtersons |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Septimus Jones & Lee |
ORDERS
That all previous orders in respect of the children [X]born in 2003 and [Y] born in 2004 (“the children”) be discharged.
That the mother and the father have equal shared parental responsibility for the children.
The children be enrolled at and attend at [B] Primary School for their respective primary school education unless otherwise agreed between the parties and that the parties do all such things and sign all such documents so as to effect the children’s enrolment at [B] Primary School.
That the children live with the father as follows:
(a)During the school terms for two weekends out of each three from Thursday at the completion of school until Monday at the commencement of school;
(b)On the Monday following each weekend that the children spend with the mother from the completion of school (or from 9:00am if a public holiday) until the commencement of school on Tuesday;
(c)On a week-about basis during the summer school holidays with the changeovers to occur on Fridays at 5:30pm or otherwise as agreed between the parties;
(d)For one half of each Victorian gazetted term school holiday period and for such periods the orders pursuant to paragraphs (4)(a) and (4)(b) be suspended;
(e)On special days including Christmas day, the children’s birthdays, the parent’s birthdays, mother’s day and father’s day as agreed between the parties.
That the children live with the mother at all other times.
That for the purposes of the above orders changeovers take place at the children’s school when appropriate or otherwise the party expecting the children to come into his or her care (or that party’s responsible agent) collect the children from the home of the other party at the designated time.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Harris & Harris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 12679 of 2007
| MS HARRIS |
Applicant
And
| MR HARRIS |
Respondent
REASONS FOR JUDGMENT
Background
The application is one by the mother filed 22 November 2007.
It relates to two children namely [X] born in 2003 (aged 6 years) and [Y] born in 2004 (aged 4 years).
The applicant mother is 35 years of age. She is an [occupation omitted] by profession. She has re-partnered with Mr O.
The father is 43 years old. He is an [occupation omitted]. In October 2008 he took a redundancy package from his employment. He has recently remarried and a child of that relationship is to be born in 2009.
The parties commenced cohabitation in either 1998 or 2000. Nothing turns on this discrepancy. They married in April 2001 and separated under the one roof in March or April 2005.
On 10 August 2005 the parties entered into consent orders lodged with the Family Court of Australia. They resolved financial matters. They agreed joint responsibility for the long term care, welfare and development of [X] and [Y]. They agreed for the children to live with the mother.
The father’s contact (as it then was) was also agreed in the orders of
10 August 2005. The children were obviously very young at the time and, as such, contact was sensibly agreed on a progressing basis with order 5 of those orders making particular reference to:
That after both children have commenced their schooling, the parties shall renegotiate the above contact arrangements and in particular shall address the question of school term holiday and long summer vacation.
I also note that order 7 of the consent orders of 10 August 2005 states:
That the parties shall consult one another about any decisions relating to the children’s schooling.
[X] commenced school proper in 2008. [Y] enters school in 2009.
The parties physically separated on 16 August 2005 with the wife remaining in the former matrimonial home at [K]. The husband moved to the [L] area.
In about September 2006 the wife received an offer of employment as an [occupation omitted]. The parties at the time had discussions, and attended mediation, in respect of the children’s arrangements. The wife commenced full time employment on 16 October 2006.
Although there is some dispute as to the motivation of the parties, or more particularly that of the wife, it is clear that the parties negotiated and agreed a shared care arrangement for the children at this time.
The husband was to change his work commitments to an extent and the children were also enrolled in a day care centre at [L].
The wife says that after only about two months she noticed that the children were unsettled by these new arrangements. At the same time she reduced her work commitments to three days per week.
In February 2007 the mother commenced a relationship with Mr O.
He has two sons and a daughter. They do not live with him although they do spend time with him.
In November 2007 the mother commenced these proceedings seeking orders including order 5 of her application being:
That the child [X] attend [B] Primary School in [M] in the 2008 academic year.
On 1 January 2008 the wife ceased all employment outside of the home.
On 15 January 2008 interim orders were made by consent whereby:
·The previous parenting orders were discharged.
·The parents to have equal shared parental responsibility for the children.
·The children to spend equal time with the parties on a week-about basis from Friday to Friday save that the children spend the Monday night with the non-resident parent in any given week.
·Half of the school holidays with each of the parents.
·[X] to attend [R] Primary School in [T] and [Y] to attend [E] kindergarten in [V].
·Preparation of a family report.
·Listed for final hearing on 8 September 2008.
On 3 July 2008 the parties were divorced.
In about mid-2008 the mother and Mr O moved into a home at Property G, [M]. Since separation from the father, the mother has apparently lived in the former matrimonial home, another property formerly owned by her parents, and a previous property with Mr O.
Mr O owns the property at Property G, [M], jointly with his family company. The wife’s evidence and that of Mr O is that she will be purchasing a one-half interest in that property and there is no contemplation of the family unit moving again.
Importantly for this application, Property G, [M], adjoins the [B] Primary School (“[B]”).
In about August or September 2008 the father was offered and accepted a redundancy package from his employment.
[X] attended the [R] Primary School (“[R]”) in [T] during her preparatory year in 2008. The evidence is that [R] is approximately equidistant from the parties’ homes or about a 20 minute drive from each home, dependent upon the vagaries of time and traffic flow.
It is clear on the evidence that as of January 2008 the choice of [R] as a primary school for [X] was a compromise on an interim basis on the part of both parties. At that stage the father had a preference for a primary school near to his [L] home. The mother according to her application was favouring [B] Primary School even before moving to her current adjacent address.
Issues
The issues in the matter are discrete. At the commencement of the hearing I was told by counsel for both parties that
This is not a case of great animosity… Both are good, loving parents with a history of being able to cooperate and negotiate…
and that
…whatever the decision of the Court, both will accept and continue their cooperation for the benefit of the two children.
These are admirable sentiments. I accept their veracity and say that
it is clear from the evidence that both parties are indeed generally good, loving and committed parents with their children’s best interests being a priority.
The major discrete issues remaining for my determination are:
a)Which primary school the children should attend.
b)Whether the children should live primarily with one parent or the other, or, alternatively, whether the current equal shared care arrangement (albeit with some variation) continue.
Applicant mother’s proposals
The mother proposes that the children live primarily with her. She seeks an order that they be enrolled at and attend the [B] Primary School. She asks that they spend time with the father on a regime of three weekends out of each five during school term as follows:
·
Week one – Thursday after school until Monday at the start
of school (four nights).
·
Week two – Friday after school until Monday at the start
of school (three nights).
·Week three – spend weekend with the mother.
·
Week four – Thursday after school until Monday at the start
of school (four nights).
·Week five – weekend with mother.
The mother proposes that school holidays be shared equally.
The evidence suggests that the mother bases her application
and proposals on the following:
·The existing shared care arrangement has proved confusing for the children.
·There has been a resultant reluctance on the children’s part with the mother’s evidence in chief being that the children have stated “mummy do we have to go to daddy’s?”
·The existing regime is too fragmented and there is a need for stability and routine in the children’s lives.
·
The father has been obliged to delegate some of his responsibilities for the care of and collection of the children
to others notably his mother and his now wife, and that this has also upset the children.
·That the mother is able to be involved to a higher degree in the children’s schooling due to her not working outside of the home, and the adjacent vicinity of the [B] Primary School to her home.
·[B] Primary School eliminates approximately 40 minutes’ travel per day for the children (being presumably 80 minutes’ travelling for the mother on the basis that she would propose delivering the children to and collecting them from school if they were to remain at [R]).
·That the father’s existing situation of not working is in all likelihood is only temporary.
·
That the children would benefit socially from attending at
a school in the same area as their residence in that it allows ease and informality of visits from their school friends who will presumably will also live in the same neighbourhood.
Respondent father’s proposals
The respondent father for his part proposes that [X] remain at [R] and obviously that [Y] attend the same school. He supports his position as follows:
·That [X] has adjusted well socially and academically at [R] Primary School and that a change of successful schooling would not be in her best interests.
·
In the second half of 2008 he took a redundancy from
his employment and is therefore available to care for the children without any significant delegation of his responsibilities.
·[R] school is roughly equidistant between the parties’ homes and the travel is not prohibitive or contrary to the children’s best interests.
·That he can provide for their socialisation in that the children have cousins who live in close proximity to the father’s home.
·
The children are familiar with a shared care arrangement and
it has worked relatively successfully due to the commitment
and communication of both parties. Conversely, the proposal
of the mother would significantly reduce the children’s time with their father including incorporating lengthy gaps of up to 10 days between visits.
In answer to my inquiry during addresses by counsel, it is clear that
the father would propose continuing shared care of the children even
if it was my determination that the children should attend the [B] Primary School.
The father proposes that the existing arrangement continue in the short term but that at the end of term two in 2009 the children move to
a regime where they simply spend seven days with each parent in turn.
The Court’s approach
To put it simply, there are two broad issues for my determination. First, whether the children should attend the [B] Primary School or the [R] Primary School, and secondly, whether there should be an equal shared care arrangement or whether the children should primarily live with one or other of the parents. Obviously, a sequential determination of the issues in any order could be determinative of the other. That is, if I was to make a preliminary decision that the children should attend the [B] Primary School then this may be determinative of their living arrangements. Similarly, if I firstly determine their living arrangements, then this may be determinative of which school the children attend. In my view, and after some consideration, both issues are equally at large and it is not proper to determine them sequentially. Both are parenting orders in the true sense. It is proper in my view to apply the principles and considerations in the Family Law Act 1975 (“the Act”) to each.
The evidence
The Court has been assisted by two family reports from Diane Dockeary dated 8 August 2008 and 19 November 2008 respectively. Ms Dockeary deposes to having qualifications as a psychologist
and with considerable experience as a Family Court counsellor and
in the preparation of reports for use in the Family Court of Australia (and presumably the Federal Magistrates Court of Australia).
The mother relies on two affidavits of herself filed 22 November 2007 and 4 September 2008. She also adduces evidence from her partner, Mr O, in an affidavit filed 4 September 2008.
Oral evidence was led from the mother’s solicitor, Mr Peter Milford, primarily as to issues of credit arising during the hearing.
The father relied on three affidavits of himself being two separate affidavits filed 7 January 2008 and an updated affidavit filed
4 September 2008. He also adduced evidence in affidavit form from his mother, Mrs L, and his now wife, Ms H.
All witnesses were cross-examined.
Relevant parts of the Melway Street Guide to Greater Melbourne were tendered by consent to show the geographical location of the various schools and residences.
The law
Part VII of the Act governs proceedings for parenting orders.
Section 60CA of the Act stipulates that the Court must consider the best interests of the children as the paramount consideration.
Section 60B of the Act sets out the objects of Part VII of the Act
and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of the child 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; andd)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development
of their children.[1][1] See s.60B(1).
Section 60B(2) provides that, except when it would be contrary to the children’s best interests, the principles underlying those objects are:
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); andc)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 61DA(1) provides for a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the child. Debate as to that presumption
is unnecessary in this case as both parties seek an order for equal shared parental responsibility. I should say that there are no facts before me that would suggest otherwise.
The making of an order for equal shared parental responsibility
is important, however, as statutory consequences and practical considerations flow from such an order. That is, when an order for equal shared parental responsibility is made the Court is obliged
to consider whether it is in the best interests of the children and reasonably practicable for the children to spend equal time with each parent and, if so, then consider making such an order.[2]
[2] Section 65DAA(1).
If an order for equal time with each parent is not considered in the children’s best interests or reasonably practicable then the Court is to move to consider whether to make an order for substantial and significant time with each parent.[3]
[3] Section 60DAA(2).
Substantial and significant time is defined in the Act as time which allows a parent to be involved in the child’s daily routine as well
as special occasions and events. It includes weekdays, weekends and days of special significance.
Section 65DAA(5) sets out the matters which the Court should consider in deciding whether a particular order is reasonably practicable. These matters are:
a)how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement
an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; andc)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing
an arrangement of that kind; andd)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the court considers relevant.
In determining what is in the children’s best interests, I must consider the matters set out in s.60CC(2) and (3) of the Act insofar as each
is relevant. Those factors must be considered in relation to each party’s proposals for the children.
Section 60CC(2) sets out the two primary considerations, which 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.
As indicated by counsel, these young children are fortunate in that they have a meaningful and beneficial relationship with both their parents. The family consultant stated in both reports:
[X] and [Y] have reliable, established relationships with each of their parents; also with their parent’s partners and children, and the girls’ extended family.
I am told that whatever order I make, these relationships will
be maintained. After hearing the evidence, I accept that this is the case and my observation of the parties and their witnesses at the hearing leads me to conclude that those relationships will in fact flourish. This is to the credit of both parents.
There is no issue raised by either party that the children are in any need of protection against physical or psychological harm from any source.
Section 60CC(3) sets out the additional considerations that I am to take into account. The considerations relevant to this case are as follows.
Section 60CC(3)(a) – any views expressed by the children and any factors such as the children’s maturity or level of understanding that the Court thinks are relevant to the weight that should be given to the children’s views.
The mother suggests that the children express a preference to attend the [B] Primary School. The father suggests that [X] has said to him that she would be keen to stay at the [R] Primary School. Initially, I was a little surprised at these contrary statements given the parties’ stated commitment to open communication between them. However, the children are both very young. It would not be surprising if [X] was to make contrary statements of view in different contextual situations.
The children were five and four years of age at the date of the hearing. As Ms Dockeary says in her first report at page 16:
[X] and [Y] are too young to understand the implications they might hear about their living arrangements. Therefore little weight should be placed on their views about this. However, the two girls do understand that they move regularly between two homes. For this reason some validity could be given to statements such as [X] saying:- “I don’t like it. It’s too hard. It keeps going.”
Similarly, the mother reports to Ms Dockeary that “the children complain that…daddy’s always working” and that “we just want to be with you”.
Again, such statements may not be unusual and certainly not determinative of the children’s overall views.
It is opportune at this point to raise one area of contention between the parties. The father suggests to Ms Dockeary and in his evidence that the mother may have attempted to influence the children’s views
or statements. In her first report at page 12, Ms Dockeary comments:
In discussion with the two girls it was apparent, if what the children said is correct, that their mother had been talking with them about their living arrangements.
Further at page 13 of her report, Ms Dockeary says this:
In summary, what these young children said about specific preferences for their living arrangements can carry only little weight; given their young ages and that they appear to have been involved in discussions with their mother. There was no indication that the children really understood the wider context or content of these discussions; but were merely repeating what they had heard.
The father also reports a further and more recent statement from [X] made after he decided to cease work in late 2008. He says that [X] stated: “Daddy, how are you going to generate income?”
The mother denies either directly attempting to influence the children or even perhaps inadvertently relaying her personal views to them.
However, I generally found the father to be a witness of the truth and accept that [X] made such a statement to him. This being the case, it seems that the mother may at the very least have made the children aware of her personal views in respect of the future care arrangements for the children.
Any concerns that I might have had in respect of the mother having
a tendency to “manipulate” the children are heightened by her own admission that she told the children that they will be attending [B] Primary School in 2009. This is presumptuous of her.
Nevertheless, given the ages of the children, even if the mother has entered into any course of conduct, either deliberately or naively, attempting to influence the children then it has no effect on my determination.
Further, if there has been such conduct by the mother then I am of the view that it is limited to the context of being involved in litigation
and generally accept the mother to be a parent who would act objectively and not intentionally involve the children in these proceedings.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents, and other persons (including any grandparent or other relative of the children)
Again, it is to the credit of both parents that [X] and [Y] have very loving, meaningful and beneficial relationships with not only their parents but with their parents’ respective partners and other important relatives. As Ms Dockeary said in her first report at page 14:
In summary, from observation of [X] and [Y] with Mr and Mrs Harris, the children’s relationship with each parent presents as strong, reliable and supportive. The children appear to have a secure attachment to both their parents and to enjoy their time with both.
I also had the benefit of observing both Mr O and Ms H in the witness box. I find both to have been good and honest witnesses. I have no hesitation in finding that both will be positive additions to and influences on the lives of [X] and [Y]. I make the same general comments in respect of the paternal grandmother.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
It is clear that both parties have the ability to facilitate and encourage
a close relationship between the children and the other parent. They have demonstrated this by agreeing a shared care arrangement since 2006.
Through their counsel, both parties expressed a willingness to continue to encourage and facilitate the children’s relationship with the other.
I accept their commitment in this regard.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances including the likely effect of separation from either parent or other persons with whom they have been living
This is a relevant consideration given the mother’s proposal to move away from an existing shared care arrangement. The mother also proposes a change of school for [X].
The children are young. The shared care arrangement has continued for some two years, which is obviously a significant proportion of their lives. This consideration does, in my view, go to the very crux of the two discrete issues for my determination.
The father proposes a continuation of the status quo.
The benefits and detriments of the existing status quo should,
of course, be taken into account in this judgment. I do so. Those benefits and detriments are inherent in each of the alternative proposals and arguments for each.
It is obvious that a change of school will involve [X] losing some friendships and making new ones. She is, however, a young child.
Ms Dockeary informed the Court that in her view children
of such an age do not make entrenched friendships.
The mother says that attendance at [B] has the advantage of virtually eliminating the daily travel for the children. Of course, the children would still need to travel to school when they are with the father. Alternatively, if they were to live with the father then there would be travel to and from school from the mother’s home. However, there would appear to be an advantage in the mother’s proposal that it would eliminate travel for the children on a number of school days. The current situation involves the children having to travel each and every day for the purposes of school.
The mother promotes a further advantage of a change of school being that the children would have school friends in their local neighbourhood. It seems obvious that the children attending the [B] Primary School would live in that general neighbourhood. The mother says that this can promote ease and spontaneity of peer group relationships. There is some merit to this claim.
The major change, in my view, anticipated by the mother’s proposal
is that there would be significant gaps of time between the children seeing the father. At the moment the children spend a week with each parent. Changeovers occur on a Friday. However, that week is broken by the children spending the Monday overnight with the other parent. On my calculations, this results in a period of no longer than something less than four days away from each parent. The mother’s proposal would see the children spending approximately 10 days at times away from the father. I note, however, that the mother may propose
an “activity period” to break up that time. I also note that the father himself and proposes that the children enter into a simple seven day regime with each parent as from the end of second term in 2009.
I infer, therefore, that he anticipates that the children would be able
to cope with being absent from each of the parents for up to seven days as from mid-2009.
In summary, however, the proposals of the mother do constitute
a significant change in regime for the children and, if those proposals are to be adopted, then that change should be addressed.
The function for the Court, therefore, is to consider and allocate weight to each of these changes for the children anticipated by the mother’s proposals.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time or communicating with a parent
In a sense, the mother’s case rests on the practical difficulties of travel for the children. I have referred to this matter above.
There is no issue as to the relative expense of either party’s proposals for the children.
Section 60CC(3)(f) – the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs
This is an important consideration. To put it simply, the mother says
in her evidence in cross-examination that she would not be opposed
to a shared care regime for the children if she could be confident that the father would not resume employment and therefore his need
to delegate responsibilities for the children. I find this a simplistic statement by the mother as it effectively neglects the other issues raised by her such as the travel commitments of the children, socialisation and stability.
In my view both the father and his current wife were equivocal in their evidence as to whether or not he would resume his employment.
The father suggested that he would commence a financial planning business working from home. Yet he conceded in cross-examination that he has done nothing to start that business. It is clear that he needs further qualifications. He has made no enquiries about enrolment
to obtain those qualifications. In answer to such a question from the mother’s counsel, he said “I haven’t thought of it yet. I am not even interested at this stage in enrolling at all”.
The father was asked of his likely employment situation in 12 months’ time. He responded that “things might be different”. When asked
of his employment prospects in two years’ time, he responded by saying “the probability of that is increased”. He then suggested
a strong “probability” of a return to the workforce within three or four years.
The mother in her evidence made much of a conversation with the father in 2008. She says that he suggested to her that [X] remain enrolled at [R] for the first half of 2009 and then to “reassess the situation”. The mother took this to be a reference to a likelihood by the father to return to employment sooner rather than later.
Ms H was also asked about her husband’s likely return to the workforce. She responded “maybe”.
The father has qualifications and experience which could bring him
a significant income. Whilst he has received a redundancy payment, the quantum of that payment and his age suggest that he could in all likelihood return to the workforce in the future either as an employee or in a self-employed capacity. Despite his stated intentions, the father has done nothing to establish a home based self-employment.
The mother does not work outside of the home. She uses her professional qualifications to do some work from home but not
in conflict with the children’s school hours.
The mother hence has the ability to be involved in the children’s schooling on a regular basis. This is her stated intention. That ability is enhanced if the children attend [B] Primary School which is adjacent to the mother’s residence.
Despite their stated communication and cooperation, there have been other difficulties between the parties which may be relevant to their capacity to care for the children.
The mother was critical of the father in respect of his financial commitment to the children. In particular, she made reference to the father’s alleged failure to contribute to medical costs of [Y]’s recent broken arm. Initially, I saw such an argument at odds with the father’s evidence of commitment and communication. The mother’s evidence painted a picture of the father as perhaps somewhat controlling in his fiscal responsibilities. This was accentuated by an allegation that he stopped paying child support immediately upon receiving his redundancy.
The father was cross-examined as to these matters. His explanations were, in my view, reasonable and understanding. I am left with
the impression, therefore, that the mother may have seen an opportunity of “point-scoring” in support of her case. However, this must be seen in the light of the stresses of litigation and in my view
is not indicative of any ongoing future concerns.
Similarly the father was challenged as to his commitment to the children’s extra-curricular activities and in particular dancing and swimming lessons. Again, his explanations in cross-examination were reasonable and acceptable.
The mother, for her part, was criticised for her response to a situation where she reacted negatively to finding the children being collected by the father’s partner and his mother at a pre-arranged changeover.
The mother expected the father to be present. He did not tell the mother of his change in plans and his delegation of his role.
The mother is criticised for her negative reaction. She alleges assault and harassment at the hands of the children’s grandmother and the father’s partner. She complained to the father and to her lawyer accordingly.
The mother, Mrs L, and Ms H were all cross-examined as to this incident. I prefer the version of events as given by Mrs L and Ms H.
Nevertheless, the mother’s attitude in response is perhaps understandable when it is considered that she had sought
a commitment from the father to personally collect the children and also her allegation that the children had previously reacted negatively to the father’s delegation of his responsibilities.
The mother stated in cross-examination that she now has no difficulties with the involvement of Ms H in the children’s lives. As such, I consider this incident to be an aberration on the part of the mother and accept her commitment to continuing facilitation and encouragement of the children’s relationships with all important people in their lives.
The father was also criticised as to a lack of involvement in [X]’s schooling. The evidence suggests otherwise. He said in cross-examination that he had been to every Monday assembly. He had been to all parent-teacher meetings. He had been involved in a woodwork session at the school. I accept the father’s evidence in this regard.
In summary, I have no doubt that both parties have the ability to care for the children’s actual, intellectual and emotional needs. My only reservation is in respect of the father’s future employment commitments.
I am of the view that the mother’s criticisms of the father in his care and involvement in the children’s lives is unjustified and does not sit well with her stated commitment to an open, communicative and cooperative relationship with the father.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
This subsection is not directly relevant.
Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
Both parties have generally demonstrated a good and beneficial attitude to the responsibilities of parenthood.
Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family
This subsection is not relevant.
Section 60CC(3)(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 children
Given the opening statements of counsel and my acceptance of those statements to the effect that the parties seek a Court determination as
to two discrete issues and are prepare to abide by that determination,
it is difficult to see whether any of the particular proposals are more
or less likely than the other to lead to the institution of further proceedings.
I am also obliged to consider the provisions of s.60CC(4) of the Act. This section requires me to consider the extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibilities as a parent. I believe that all relevant considerations have been set out above.
Family reports
As previously mentioned, there are two comprehensive and generally very helpful family reports. Those reports resulted after interviews with the parties and the children and observations of the children with each of the parties. I generally accept what Ms Dockeary says as to her observations of the children and her conclusions as to the nature of the children’s relationships with each of their parents.
Ms Dockeary recommends the children live primarily with the mother. In my view, and after hearing her evidence from the witness box, she does so as a statement of general policy and personal view rather than a specific reference to this particular factual matter. It was clear from her evidence that Ms Dockeary could not envisage any factual circumstance for children of the age of [X] and [Y] where equal shared care was a viable alternative. To put it bluntly, Ms Dockeary conceded an unequivocal opinion contrary to equal shared care of children the ages of [X] and [Y]. The Court is aware of a number of recent academic papers on the subject of equal shared care of young children.[4]
[4] J. McIntosh and R. Chisholm (2007/08) “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale From Current Research”, Australian Family Lawyer, 20(1), 3.
However, this is a case where both parties seek an order for equal shared parental responsibility. I must at law, therefore, consider whether spending equal time with each parent is in the best interests
of the children and is reasonably practicable.
It is trite to say that each case should be considered on its own facts.
I was referred to the well-known decision of H and H[5] where Federal Magistrate Ryan (as she then was) gave a very helpful summary of the relevant considerations for a court in determining whether to make
[5] (2003) FLC 93-168.
an order for equal time. It is clear that H and H was determined prior to the most recent amendments to the Act. However, in my view, the relevance remains. At paragraph 47 her Honour states:
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
Her Honour goes on to say at paragraph 48:
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor
s 68F(2).
Although s.68F(2) of the Act has been repealed, the essence of Her Honour’s statements remain valid with current reference to s.60CC
of the Act.
Obviously, these same considerations apply generally to when a court is to consider an order for substantial and significant time.
In this particular case, the parties have demonstrated, in my view, many of the traits consistent with the ability to exercise equal shared care and/or significant and substantial time. As such, I respectfully disagree with the unequivocal approach apparently taken by Ms Dockeary.
The parties in this case have a demonstrated capacity and commitment to communication. There is a prior history of shared care. There
is encouragement as to the children’s day to day lives. In my opinion, the parties clearly respect each other as parents.
Consequently, and whilst I have been very much assisted
by Ms Dockeary’s reports, I find her philosophical rejection of shared care as being unhelpful and contrary to my obligations under the Act.
Conclusion
Whilst the parties in this case are to be commended for their general agreement in respect of [X] and [Y] and their commitment to future cooperation and communication, the remaining issues of where the children should go to school and the regime of where they live has retained some complexity.
The father initially sought that the children go to a school proximate
to where he lives. Clearly he saw the benefits of proximity of school and home for the children. To his credit, he has changed his position and favours [R]. He emphasises the factors of stability and success for [X] in her preparatory year.
I accept that he sees relative success in the shared care arrangement over the last two years.
The father was an impressive witness. He was able to be objective.
He clearly prioritises the children’s best interests over his own convenience. He will continue to be a positive and beneficial influence in his daughters’ lives.
The father is complimentary of the mother. There was no improper
or unnecessary criticism of her. He legitimately believes that they can cooperate as parents for [X] and [Y].
The father is of the view that the travel for the children if they are
to continue to attend the [R] Primary School is not prohibitive.
That father correctly, in my view, is against the philosophical view taken by the family reporter. In summary he says that there is a demonstrated capacity of both parenting to make shared parenting work. He says that his daughters have endured a number of circumstantial changes such as new partners in each of their parent’s lives, new residences, introduction of school and introduction of
Mr O’s children. They have flourished in their relationship with both parents.
He says that the status quo has proved successful. His counsel correctly differentiates between the imposition of a shared care arrangement as against the retention of a status quo.
The mother’s proposal is not without difficulty. The regime she suggests for the children is significantly different than the two year status quo. There would be a change of school for [X]. The mother counters these difficulties and says on balance that the benefits are considerable. She says that the children will benefit by not having to travel to and from school each day. I find some merit in this submission. Whilst the father does not see the travel as being prohibitive, the children are very young. The travel is, on the evidence, a minimum of 40 minutes per day. It is obviously unnecessary travel
if the children were to attend the [B] Primary School.
The proximity of [B] is significant. There was some suggestion of the mother moving to her current residence as some form of strategic ploy. I do not accept this. I do accept that there are benefits for the children in having their mother close by. She does not work. She has a demonstrated commitment to involvement in the children’s school. The simple fact is that her availability and hence the benefit for the children is increased by them attending [B].
I also find some merit in the argument that the children’s friendships and general socialisation will be enhanced by them attending [B]. Their co-students will be from the same neighbourhood. After-school socialising will be of a less formal and more spontaneous nature than should they attend [R]. In my view this is of benefit to the children.
[X] has completed only one year at [R] Primary School. Whilst it is put to me that she has made friends, this demonstrates that she has the ability at a young age to establish relationships and I am sure that she would do so at whatever school she attends.
On balance, therefore, and after considering all of the relevant factors in respect of both proposals, I am of the view that the children’s best interests are served by them attending [B].
The other issue is that of the regime of care for the children.
The father’s counsel informed me during final addresses that the father would still propose the status quo for care of the children even
if I determined they attend [B]. This, however, brings forth the issue of travel. That is, if the children are to spend five school days in each fortnight with the father, then there would be significant travel to and from school for them. Again, they are young and I am of the view that it is in their best interests for travel to be avoided if possible on balance.
Nevertheless, I am concerned that the mother’s proposal of the children spending three weekends out of each five with the father causes significant gaps in them being with him and on my calculations up
to 10 days on two occasions in each five week cycle. I accept that
the mother proposes “activity time” which I presume to be an after-school/evening period with the father during the 10-day gaps.
In my view this does not adequately compensate the children for their loss of time with him and does not address the 10-day gap. I repeat that the father has been a significant person in the children’s lives.
The parenting in the sense of time and effort has been shared for the last two years. I am of the opinion that the children’s best interests
are certainly served by them continuing to have both a quality and regular relationship with their father.
Consequently, I have determined that the children should spend two out of each three weekends with their father. Those weekends should commence on Thursday after school and continue until the Monday
at the commencement of school. On the Monday following the children’s weekend with their mother the children will spend overnight with their father. This addresses the abovementioned problem
of lengthy gaps. At the same time it gives the children a general consistency of going to school from their mother’s residence for four out of five days in each week. Such a regime does, however, allow
for the father to have continued involvement in the children’s schooling.
In my view such a regime is both reasonably practicable and on balance in the best interests of the children.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 3 February 2009
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