Hartnett and Sampson (No. 2)

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 2)

[2008] FamCA 404

FAMILY LAW – CHILDREN – interim – with whom a child spends time – best interests of the child

APPLICANT:

Ms Sampson

RESPONDENT:

Mr Hartnett

FILE NUMBER:

SYF

3827

2004

DATE DELIVERED:

23 January 2008

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd

SOLICITOR FOR THE APPLICANT:

Paul and Paul Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Karras Partners

INDEPENDENT CHILDREN'S LAWYER :

Ms Karagiannis, Legal Aid Commission of NSW

Orders

The mother’s Further Amended Application in a Case filed on 18 January 2008 be dismissed

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

MS SAMPSON

Applicant

And

MR HARTNETT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This case comes before me in unusual circumstances. I will refer to that shortly. The mother currently lives in Geelong; the father lives in Sydney. The father remains in the former matrimonial home, which has not yet been sold. This case is about what time the parties’ daughter born in April 2003 and son born in November 2004 (“the children”) will spend with their respective parents and where that time will be spent pending the final outcome of the present litigation that the parents are conducting in relation to the children.
There is a further and closely related issue between the parties as to whether or not the daughter should commence school at the commencement of the first school term in 2008. These issues were considered by Loughnan JR on 17 December 2007, and he made orders on that day, the effect of which was that the children spend alternate seven day periods with each parent and that regime commenced on 5 January 2008.
The Judicial Registrar restrained the mother from enrolling and/or commencing the daughter at any school without the prior written consent of the father. The father's application before me is in terms that were filed in his application in a case on 17 December 2007 as follows:
1.That pending further order the husband and wife have equal shared parental responsibility for the children [the daughter] born […] April 2003 (“[the daughter]”) and [the son] born […] November 2004 (“[the son]”).
2.That [the daughter] and [the son] (“the children”) live with the father from 5.00pm 21 December 2007 until 5.00pm 25 December 2007 and in respect of this order:-
2.1The mother shall deliver the children to Avalon Airport at 4.45pm on 21 December for the children to travel on Jetstar JQ620 from Avalon Airport to Sydney;
2.2That the father shall collect the children from Avalon airport on 21 December and travel with them to Sydney;
2.3That the father shall return the children to Avalon Airport on Jetstar JQ623 departing Sydney at 5.40pm on 25 December 2007.
3.That pending further order the children live with the father on an alternate seven (7) day weekly basis the first period commencing 5.00pm 4 January 2008 concluding 5.00pm 11 January 2008 and fortnightly thereafter and with the wife during the other weeks.
4.For the purpose of Order 3 the father shall collect and return the children from Avalon Airport for the first weekly period each month and the father shall be responsible for the costs of such travel. It is the intention that the children will travel on the Jetstar Flight leaving Avalon Airport at 5.45pm and return to Avalon Airport departing Sydney on the 5.40pm flight.
5.For the purpose of Order 3 the mother shall deliver the children to Sydney Airport on the second weekly occasion each month, the first period to be 18 January 2008 to 25 January 2008 inclusive with thee mother to be responsible for the costs of such travel subject to Order 6.
6.In respect of the children’s travel pursuant to Order 5 the father shall obtain further loan monies to pay the cost of such transport which shall be added to thee monies payable by the wife to the husband under Order 3(iv) of the Orders of this Court dated 21 March 2007.
7.That the mother be restrained from enrolling and/or commencing [the daughter] in any school without the prior written consent of the father.
8.That the matter be adjourned for final orders in accordance with the directions of the Full Court of the Family Court of Australia.
The Judicial Registrar made orders in the terms sought by the father, and the order that was made has to date been complied with. The mother's application is contained in a further amended application in a case which was filed on 18 January 2008, and the mother seeks that the orders made by the Judicial Registrar be reviewed, and further, depending on the determination of the review application - and she further seeks that the orders of the Judicial Registrar be stayed. I do not need to deal with that stay application, given that I am now delivering judgment in relation to the review application.
The mother seeks alternate orders in paragraph 4.1 through to 4.10 in the following form on an interim basis:
4.1That the father spend time with the children during school terms as gazetted in the state of Victoria (“school term”) each fortnight from 5pm Friday until the commencement of school Tuesday, the father to travel to Geelong and spend time with the children there. The mother to deliver the children to the father at the commencement of such time and the father to deliver [the daughter] to school and the mother to meet the father at [the daughter’s] school for the purpose of collecting [the son] at the conclusion of such time.
4.2That [the daughter] do commence school in 2008 and that she attend primary school at [S School].
4.3In the event that Order 4.2 is not made that the children spend time with their father pending further order of the Court on each alternate Friday from 5pm until Tuesday at 5pm the first occasion to take place in Geelong to alleviate the hardship to the children of them travelling to Sydney and the next occasion to take place in Sydney so that the children have an opportunity to spend time with their family in Sydney to the intent that in every 4 week period the children are required to travel to Sydney on one occasion only.
4.4That the father pay the cost of travel between Geelong and Sydney.
4.5During school holidays as gazetted in the state of Victoria that the father spend time with the children for one half of the school holidays following terms 1, 2 and 3, such time to be spend with the father in Sydney.
4.6Than as otherwise provided for in these orders that the father will not take the children out of the state of Victoria unless previously agreed to between the parties in writing but that the mother will permit the father to travel with the children to Sydney on two occasions during the school term such time to be elected by the father at least one month prior to the planned travel to Sydney. Such travel to be at the father’s expense.
4.7That the parents personally care for and supervise the children at all times and if either or one of the parents is unable to care for the children that the other parent be given the first option of caring for the children.
4.8That on the occasions that the children are spending time with the father in Geelong that the father shall do all acts and things necessary to enable the children to attend their day to day commitments in Geelong including but not limited to; birthday parties; sporting events; dancing concerts’ and special family celebrations at times to be agreed between the parties and failing agreement for a period of 3 hours (“the event”) provided that the wife shall so advise the father of the event no less than 7 days before the event.
4.9That the children live with the mother at all other times.
4.10That the father pay the mother’s costs of and incidental to this application.
An order was made by consent by the Judicial Registrar that the husband and wife have equal shares parental responsibility for the children. The mother does not seek to interfere with that order.
The independent children's lawyer indicated that her position was that the application for a review should be dismissed and that the orders made by the Judicial Registrar should remain on an interim basis. There has been extensive litigation between the parties already in relation to the children. There was a hearing over 13 days in late October and December 2006 before Moore J. Her Honour delivered Reasons for Judgment on 14 February 2007.
The proceedings before the trial Judge also included property issues and a separate judgment was delivered in relation to those issues on 21 March 2007 which contained further reasons in relation to the parenting issues. At the time of delivering her judgment on 14 February 2007 her Honour invited some input from the parents, and more particularly, the mother, as to the form of the orders to be made. The father and the independent children's lawyer were prepared to do that but her Honour accepted submissions by counsel for the mother that her Honour should proceed to make orders based upon her reasons.
Her Honour made final orders in relation to the parenting of the children on 21 March 2007. Those orders provided that the children's residence be established in Sydney no later than 1 May 2007. The effect of the orders made by her Honour was to require the mother to come to Sydney and fulfil parenting responsibilities in Sydney.
As the Full Court noted the order that was made by her Honour was not one that had been previously made in this country. Bryant CJ and Warnick J did point out that it was not uncommon for an order to be made that the child be returned and, in the event that a parent followed the child, then the child remain living with that parent and in the event that the parent did not return then the child would go and live with the other parent. The order made in this case went further and, in fact, compelled the mother to return to Sydney.
Following the relocation of the children's residence to Sydney, Moore J ordered that the times the children spent with their father be gradually increased from two nights per week to alternate weeks with each parent by February 2009. The mother appealed these orders and sought a stay from Moore J of the orders which she refused but the order for stay was then made by the Full Court pending the outcome of the mother's appeal.
The appeal was heard by the Full Court on 23 August 2007 and the judgment was delivered on 22 November 2007. The Full Court allowed the appeal, set aside the orders made by Moore J on 21 March 2007, and the matter was remitted to her Honour and I will say a bit more about that in a minute.
The effect of these Full Court's orders was that on the delivery of the Full Court judgment there were no orders in place in relation to the time the children should spend with either parent. And it was in that context that the Judicial Registrar agreed to hear the parties' interim application.
Although the decision was unanimous, separate reasons were given by Brant CJ and Warnick J, on the one hand, and Kay J on the other hand. There are differences between the majority and Kay J as to whether or not there was power in the Family Law Act to order a parent to relocate. The majority said there was. Kay J doubted it without saying there was not.
The Full Court found that Moore J, having in effect ordered the mother to return to Sydney, had not done two things in her reasons for judgment, namely:-
15.1Scrutinise the practicality of the mother living in Sydney by considering the matters referred to in s.65DAA(5) Family Law Act; and
15.2Had found that given the result achieved by Moore J was “an extreme one”, the Full Court said there should have been a stringent inquiry as to the alternatives for the father to develop a relationship with the children in Geelong
In paragraph 84 of the Full Court's judgment, the majority said:
“Her Honour only addressed two alternatives. One for the father to move to Melbourne/Geelong and the other for the mother to return to Sydney. Her Honour did not fully address the prospect that the father’s relationship with the children might be advanced by contact over a period in the Geelong area and perhaps subsequently, for longer periods in Sydney to a stage where, if the mother chose not to return to Sydney to live, the better order might be that the children live with the father.”
Subsection 65DAA(5) is in the following terms:-
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practical for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other
(b) the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
(c) the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(d) the impact that an arrangement of that kind would have on the child;
(e) such other matters as the court considers relevant.
Kay J at paragraphs 118, 119 and 120 discusses the matters that need to be considered under the various subparagraphs of subsection (5) of s.65DAA as follows.
118.Subsection 5 specifically sets out matters that the court must have regard to in determining whether it is reasonably practicable for the children to spend either equal or substantial and significant time with their parents. The first of those matters is how far the parents live from each other. In this case one parent lives in Geelong and the other parent lives in Sydney. As long as that situation persists it is clearly impracticable for the children to spend either equal or substantial and significant time with each of their parents.
119.The second matter required to be given consideration is the parents’ current and future capacity to implement an arrangement that would enable the children to spend equal or substantial and significant time. The finding of the trial judge in this case was that the effect of the litigation would be to leave the mother with no money. Precisely how it was expected that she would be able to establish housing somewhere in Sydney in sufficient proximity to wherever the father was going to establish his housing (the location of which was not yet apparent given the sale of the former matrimonial home), so as to enable an equal shared or substantial and significant time arrangement to be put into place, was never alluded to by the trial judge.
120.It was also incumbent upon the trial judge to give proper consideration to the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise. Given her Honour’s findings as to the attitude already displayed by the mother to the father since separation and the attitude displayed by each of the parents in the manner in which they conducted their litigation, it becomes all the more important for her Honour to have regard to this subsection, and specifically articulate how it might be that, given the lack of cooperation demonstrated in the past, the necessary cooperation for a successful shared parenting arrangement might be brought into existence.
An order was made by the Full Court in the following terms:-
“That the application for parenting orders be remitted to Moore J for hearing and determination in accordance with the reasons of this Court.”
The matter is listed before Moore J on 30 January 2008. Bryant CJ and Warnick J said at paragraphs 90 and 91:-
90.As to the course to now be taken, obviously because further enquiry should be made, we are not in a position to re-exercise the discretion.
91.Commonly, remission for rehearing is to a judge other than the trial Judge. However, in this instance we think the remission should be to Moore J for further consideration. This is because her Honour has made many significant findings which were unchallenged. These include findings about the parties’ financial circumstances which are interwoven with the practicalities of relocation. Of course upon reconsideration, her Honour may form the view that what she originally sought to achieve is not achievable. Thus, the parenting orders ought be set aside by us to allow a fresh consideration of all issues, including any arising from the period since trial. The status of her Honour’s findings will then be a matter for the parties and her Honour, but the prospect of relitigating every matter relevant to the issues to be determined is greatly lessened.
Kay J at paragraph 137 said:
“The matter needs to be remitted to the trial judge to enable her to complete her task in accordance with her statutory obligations.”
I am told that the mother has made an application to Moore J for her disqualification, and that that application was the subject of directions and written submissions which have been filed and that it is expected that Moore J will deliver a result in relation to that application for disqualification on 30 January. I raised with counsel for both sides, at the commencement of the proceedings, whether or not it was appropriate for me to enter into a determination of the review given the history that I have outlined. The mother's application I apprehend is probably primarily based upon fairly significant adverse credit findings that her Honour has made against the mother.
I am unaware as to what her Honour's attitude will be to the application, particularly, in circumstances where the Full Court seemed to implicitly think that there was no issue in her continuing to rehear the matter or to reconsider the matter notwithstanding those findings. The matter is pressed urgently before me on the basis that it is uncertain as to when the matter might be resolved on a final basis and the parties’ daughter, in the meantime on the mother's case, is imminently due to go to school. So because of those uncertainties I have accepted that I will decide the interim issue.
The following documents were relied upon by the mother:
24.1Wife’s Further Amended Application for a Review filed 18 January 2008;
24.2Wife’s Affidavit sworn 14 December 2007 and filed in Court 17 December 2007;
24.3Wife’s Further updating Affidavit sworn 11 January 2008 filed in Court 14 January 2008;
24.4Affidavit of Dr S sworn 17 January 2008 and filed 18 January 2008;
24.5Affidavit of JP filed in Court 23 January 2008;
24.6Orders made by Judicial Registrar Loughnan on 17 December 2007;
24.7Orders made by the Honourable Justice Moore on 21 March 2007;
24.8The Honourable Justice Moore’s Reasons for Judgment dated 14 February and 21 March 2007;
24.9Orders made by the Honourable Justice Moore on 7 June 2007;
24.10The Honourable Justice Moore’s Reasons for Judgment dated 7 June 2007;
24.11Orders made by the Full Court on 22 November 2007;
24.12The Full Court’s Reasons for Judgement dated 22 November 2007.
The wife also tendered photographs of the children, relevant to evidence given by her in paragraphs 24 and 25 of her affidavit of 11 January 2008.
The following documents were relied upon by the father:
26.1Application in a Case filed on behalf of father 17 December 2007;
26.2Affidavit of father sworn 14 December 2007 filed 17 December 2007;
26.3Orders dated 17 December 2007;
26.4Reasons for Judgment Loughnan JR dated 17 December 2007;
26.5Affidavit of father sworn and filed 15 January 2008;
26.6Reasons for Judgment (parenting) of Moore J delivered 14 February 2007;
26.7Reasons for Judgment Full Court of the Family Court dated 22 November 2007;
26.8Documents produced under subpoena by Dr S;
26.9Documents produced under subpoena by S School.

I have read the material that has been tendered and made an exhibit before me.
Counsel for the mother agreed at the commencement of the proceedings before me that the matter would proceed before me on the basis that there is no material filed or relied upon by the wife that put in contention any finding made by Moore J, and these interim proceedings will proceed on that basis.
As the Full Court observed in Goode & Goode (2006) FLC 93-286, an interim application for parenting orders is by its nature an “abridged process where the scope of the inquiry is necessarily significantly curtailed”.
The best interests of the children are my paramount consideration. In determining those best interests I must primarily consider the matters set out in section 60CC(2) of the Family Law Act, and go on to consider the additional considerations set out in section 60CC(3) and (4), and I also have in mind the objects and underlying principles of the Family Law Act in Part VII.
Given that the wife did not seek before me to put in contention any of the findings of Moore J, I adopt those findings for the purposes of my consideration of section 60CC(2), (3) and (4) and then just to highlight some of those findings. In relation to section 60CC(2), that is the consideration of the primary considerations, to summarise briefly, the findings made by Moore J under those subsections are set out in her Honour's reasons. Her Honour indicated that the primary considerations were of particular significance in this case, and that both of them favoured the father and his role in the children's lives being enhanced considerably over what had been taking place.
Her Honour found that the children should have an opportunity to spend considerable time in his care and that he should have the opportunity to take a proper role in their day to day lives and upbringing.
In dealing with the additional considerations under section 60CC(3), her Honour dealt with those which seemed relevant. Some of them are not relevant. The first relevant consideration is subsection (b) and her Honour, consistent with her finding in relation to the primary considerations, found that the relationship between the children and each of their parents was as follows: the daughter’s relationship with her mother was marked by anxiety and that she was anxiously attached to her mother. Whilst the mother was the son’s significant primary carer since birth, her Honour adopted what Dr Q had found that a similar anxiety could develop in the son in time.
On the other hand, her Honour found that the daughter had a comfortable, relaxed and secure relationship with her father, and that the son was closely attached to his father. Her Honour referred to relationship with other members of both parents' family, but particularly emphasised the children's good relationship with their step brother, J, who lives with the father in Sydney.
The next considerable considerations that lumped together were subsection (c), (i) and section 60CC(4). When Moore J was dealing with the parents' willingness and ability to facilitate and encourage parental relationships and attitudes and parental responsibilities, she found that the father have a proven commitment evidenced by the constant travel to maintain a relationship with his children. On the other hand, her Honour was critical of the mother, concluding that she had attempted to marginalise the father's role in the children's lives.
Counsel for the father pointed to the fact that some of the evidence before me of events that have happened since the delivery of her Honour's reasons confirm the ongoing nature of the mother's attitude of facilitating and encouraging the father's relationship with the children. Those matters go to the matter in which the daughter was enrolled at school and the names used when the children attended for various medical appointments. On an interim basis I do not place great weight on those matters.
However, the finding that her Honour made against the mother was a significant finding and it really - for the purposes of these proceedings - does not need a great deal of embellishment.
In relation to section 60CC(3)(d) there is the effect of the change the orders will have. Her Honour at paragraph 91 of her reasons envisaged that the children would return to Sydney where they would spend significant time in their father's care, which time would be shared between the parents by the mother either returning to Sydney or spending significant time here. The arrangements to be put in place by the Judicial Registrar are now in their second whole week of operation, counsel for the father submitted, and I accepted that there was no contrary evidence that would indicate the current arrangements is causing major problems for the children.
The major issue, however, to be considered under section 60CC(3)(d) relates to the daughter’s schooling. One of the things that the mother heavily relies upon as a contrary indicator to the orders that are proposed by the father and the independent children's lawyer as being in the daughter’s best interest is the contention that the daughter was now ready to go to school and she will be greatly disadvantaged if she is not allowed to.
The daughter is, of course, not 5 until April this year and I accept the submissions made by counsel for the father that it is probable that there is no legal obligation in Victoria for the daughter to be placed in school commencing the first school term 2008. The mother has, however, taken steps to enrol the daughter in S School, Victoria. She did that on 26 April last year without consultation with the father and in circumstances where it seems there was an order that had been made that the children come and live in Sydney. And she paid a deposit in respect of that school on 29 October 2007.
There is an issue between the parties as to the level of the father's knowledge about the daughter going to school this year and the timing of that knowledge. On an interim basis, I am unable to resolve where the truth lie in that. And that matter is not of great significance. Photographs have been tendered on the daughter in her school uniform with a friend who is also school uniform. Those photographs were taken in October 2007. The mother has clearly created in the daughter an expectation that she will commence imminently.
It does not seem, on the evidence before me, a matter of controversy that the daughter has completed pre school in a normal developmental way. I have got evidence from the daughter’s kindergarten teacher that says that the daughter is ready to attend school.
Counsel for the mother put some emphasis during submissions on evidence contained in an affidavit of Dr S, who said in annexure C to her affidavit, which was sworn on 17 January 2008 that:
“Delaying [the daughter’s] progression at this stage could have detrimental effects upon her attitude to learning when she is ready for the stimulation of school.”
Dr S is a qualified medical practitioner and her curriculum vitae indicates that she is a paediatrician and a Fellow of the Royal Australian Collage of Physicians. On an interim basis, I am uncertain as to how much weight I can place upon a doctor's opinion as to the possible effects on the daughter’s attitude to learning by not starting school this year. That is, of course, something to which I have some regard.
It is an important matter for me in this case to weigh the effects of change and I will be saying something more about that in my conclusions.
In relation to the next additional matter that her Honour dealt with which was subsection (e) of subsection (3) of s.60CC, as the independent children's lawyer pointed out, the trial Judge did not believe that a continuation of the current arrangement, whereby the children saw their father in a motel complex in Victoria, was in their best interests and she referred to paragraphs 82, 92, and 108 of her Honour's reasons in that regard.
The father has set out in his affidavit in detail the process by which transportation takes place. There is currently in place an interim order that deals with the cost of transport. The mother has been involved in transportation to Sydney. I find that the difficulty and expense of transportation is not a significant consideration in the short term when weighed against other considerations.
In relation to consideration sub paragraph 3(f) which deals with the parents' capacity to provide for the needs of the children including their emotional and intellectual needs, her Honour referred to the damaging effect of the current parental conflict. She shared that failure equally between both parents. She pointed to the fact that the father had demonstrated his capacity as a parent by being involved in J’s upbringing.
Her Honour found that in many respects the mother can be seen as a capable and loving parent, but also found that that is undermined by the fact that she has not demonstrated an appreciation of the father's role in the children's lives, and further found that that is no insignificant consequence for the future of two young children.
The mother during the hearing before Moore J made a serious allegation of sexual abuse against the father which was not substantiated. In the end the trial Judge concluded, although it was not absolutely clear, that the mother quite possibly believes the abuse occurred. Her Honour found that it had not. As I have already noted, the parties in this case have consented pending further order, to an order that each of them have equal shared parental responsibility and, accordingly, I am required by section 65DAA of the Family Law Act to consider whether to make orders that the children should spend equal time or substantial and significant time with each parent.
I am required by s.65DAA FLA to consider whether to make orders that the children should spend equal time, or substantial and significant time, with each parent. The section provides that I must:-
51.1Consider whether the children spending equal time with each parent would be in the best interests of the children;
51.2Consider whether the children spending equal time with each parent is reasonably practicable; and
51.3If it is, consider making an order to provide for the child to spend equal time with each parent.
When considering whether or not parenting arrangements for the children to spend equal time with each of their parents is reasonably practical, subsection 5 sets out a list of matters which need to be considered, and I have already set them out earlier.
The first matter is subsection 5(a), namely, how far apart the parents live from each other. Counsel for the mother focused his submissions heavily upon that particular subsection. And he relied upon the adopted things said by Kay J in the Full Court in relation to that subsection. In paragraph 118 of the Full Court's judgment Kay J said
“The first of those matters is how far the parents live from each other. In this case one parent lives in Geelong and the other parent lives in Sydney. As long as that situation persists it is clearly impractical for the children to spend either equal or substantial or significant time with each of their parents.”
As discussed during submissions, those comments need to be seen in the context of his Honour commenting upon the reasons given by a Judge when making final orders. The process that I am involved in is of a more limited nature. Counsel for the mother submitted that I should not contemplate making orders that are not likely to be in the form of final orders in this matter. Whilst in some circumstances there might be some substance to that submission, it is not a proposition that has universal application. There are many situations where a Court, on an interim basis, will make orders that may not be the final orders that are ultimately made in the matter.
The next part of subsection 5 is (b), that the parents' current and future capacity to implement the arrangement. Counsel for the wife seemed to concede, and in any event I find, that in the short term the parents have the current and future capacity to implement the arrangements that are proposed by the father and the independent children's lawyer. I have already made comments about that issue when dealing with the cost and effect of implementation of the orders.
The next subsection of subsection 5 is (c) and that requires me to consider the parents' future capacities to communicate with each other and resolve difficulties that might arise in implementing an arrangement of the kind proposed on an interim basis by the father. Counsel for the wife submits, and I accept, that the parties have engaged in litigation, I think from before their son’s birth, on an energetic and consistent basis and there is, at the moment, no level of communication between them. There is no ability to resolve difficulties that might arise between them.
Kay J indicated it was important to articulate how a co-parenting order might work in circumstances where a lack of cooperation has been demonstrated. Apart from one breach of orders by the mother, both parties have complied with orders made by the Court. I am satisfied that on a limited basis upon the father seeks, I make orders that they are functional notwithstanding the lack of the capacity between the parties to communicate.
Again, it may be a weighty matter for a Judge considering the matter on a final basis, as to whether or not an equal time or significant or substantial time order could be made given the level of animosity between the parties, but as I have said elsewhere, I am involved in a process of a more limited nature than that which a Judge considering the matter on a final basis is.
In relation to subparagraph (d), I have to consider the impact that the arrangements of this kind will have on the children. Obviously, there will be effect on the daughter in that she is ready to go to school and has an expectation that she is going to go to school, and whilst I have acknowledged Dr S’s view I have to weigh that opinion against the effect on the daughter of not having a full opportunity to have time with her father that would enable her current attachments with him to flourish to the full.
It is also equally important, given the matters that I have already referred to, to maximise the son’s time with his father in the short term. In relation to sub paragraph (e) of subsection 5, the only other matter that was raised by counsel for the mother as being relevant was an assertion that an order should not be made for equal time if it is clear that that will not be the final order at the end of the day. I have already made comments in relation to that submission.
My ultimate responsibility on an interim basis is to make an order which I think is in the best interests of the children. Weighing all the considerations that I have referred to on an interim basis I conclude that the orders proposed by the father and the independent children's lawyer are in the children's best interests in the short term.
Accordingly, I order that the mother's further amended application in a case filed on 18 January 2008 be dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate:

Date: 29.1.2008

[2008] FamCA 404

23 January 2008

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Family Law

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