Hawke and Hawke

FAMILY COURT OF AUSTRALIA

HAWKE & HAWKE

[2007] FamCA 1384

FAMILY LAW – CHILDREN – Shared care of very young children – Conflict between attachment issues and need for a predominant parent – Equal shared parental responsibility – Presumption rebutted

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Hawke

RESPONDENT:

Mr Hawke

FILE NUMBER:

AYC

274

2007

DATE DELIVERED:

27 November 2007

PLACE DELIVERED:

Albury

PLACE HEARD:

Albury

JUDGMENT OF:

Justice Cronin

HEARING DATE:

22 & 23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wheeler

SOLICITOR FOR THE APPLICANT:

Derke Norquay

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:

Adams Leyland

Orders

That the husband and the wife have equal shared parental responsibility for the children L born … December 2003 and S born … June 2005.
In respect of the responsibilities referred to in paragraph (1) hereof, any decision relating to:
(a) which kindergarten or school the children attend;
(b)whether the children are to participate in any extra-curricular activity other than those organised by the school or kindergarten;
(c)any decision relating to which medical practitioner, dental practitioner or other health professional the children are to attend; and
(d)whether the children are to be treated for or undergo any medical or dental procedure requiring parental consent or participation in any psychological or counselling program requiring parental consent,
shall require the agreement of both parties.
For the purposes of obtaining the consent of both parties to any of the matters referred to in paragraph (2) hereof, if there is no written agreement by each party within a reasonable time after a request is made by the other party, each party shall attend upon a family resolution practitioner for the purposes of endeavouring to resolve any issue in dispute.
If any issue referred to in paragraph (2) hereof requires urgent attention in the view of any health professional concerned with the children such as would make the attendance upon a family resolution practitioner impracticable or not in a child’s best interests, then the wife may make such decision and give such directions as is necessary for the health professional to act in the best interests of the child or children.
Save for the urgent or emergency situations referred to, should the parties fail to reach agreement subsequent to their attendance upon a family resolution practitioner, either party may make application to a court having jurisdiction under the Family Law Act1975 (Cth) (“the Act”) subsequent to compliance with s 60I of the Act.
That the orders made by the Magistrates Court at Wodonga on 23 May 2006 are forthwith discharged.
That until 1 February 2009, the children live with the husband:
(a)from 9.00am on Friday until 9.00am on the following Monday in each alternate weekends commencing on Friday 30 November 2007;
(b)from 9.00am on Thursday until 9.00am on the following Saturday in the week after the said alternate weekend.
That from 1 February 2009, the children live with the husband:
(a)from 9.00am on Thursday to 9.00am on Monday of each alternate week; and
(b)from 9.00am on Thursday until 9.00am on the following Saturday in the week after the said alternate weekend.
From 1 February 2011, the children live with the husband in each alternate week from the conclusion of school on the Friday until the conclusion of school on the following Friday one week later commencing on the first Friday after 1 February 2011.
That subject to the holiday periods referred to hereafter, the children live with the wife at all other times.
Notwithstanding paragraphs 7-9 hereof, the children spend time with the husband:
(a)from 3.00pm on 25 December 2007 until 3.00pm on 26 December 2007 and for a similar period in each alternate years thereafter; and
(b)from 8.00am on 24 December 2008 until 3.00pm on 25 December 2008 and for a similar period in each alternate year thereafter.
Notwithstanding paragraphs 7-9 hereof, the children spend time with the wife:
(a)from 8.00am on 24 December 2007 until 3.00pm on 25 December 2007 and for a similar period in each alternate year thereafter; and
(b)from 3.00pm on 25 December 2008 until 3.00pm on 26 December 2008 and for a similar period in each alternate year thereafter.
Time spent pursuant to these orders shall be suspended during each Mothers’ Day and Fathers’ Day.
On each Mothers’ Day, the children will spend time with the wife from 9.00am to 6.00pm.
On each Fathers’ Day, the children will spend time with the husband from 9.00am to 6.00pm.
If the provisions in respect of Mothers’ Day apply, the husband deliver the children to and collect them from the wife’s residence.
If the provisions in respect of Fathers’ Day apply, the wife deliver the children to and collect them from the husband’s residence.
The children spend time with each parent on that parent’s birthday from 5.00pm to 7.00pm and the parent who is not celebrating the birthday shall deliver and collect the children.
The children spend time with each parent on the child’s birthday as follows:
(a)if the birthday is a weekend, with the husband from 9.00am to 1.00pm and with the wife from 1.00pm to 5.00pm;
(b)if the birthday is a weekday, and the child has not commenced school, from 4.00pm to 7.00pm with the parent who has not had the care of the child up until 4.00pm that day and the parent with the major care that day up until 4.00pm shall deliver and collect the child;
(c)if the birthday child is at school, then the children spend time with each parent between 3.30pm and 7.30pm equally and in default of agreement as to the precise times then with the parent with whom the child will sleep that night from 5.30pm until 7.30pm.
That until 1 February 2011, the husband shall spend holiday time with the children when he is enjoying recreation leave, for a period of five days from 9.00am on the first day until 9.00am on the fifth day during four periods each year, such periods:
(a) not to be consecutive;
(b)to be consistent whenever possible with kindergarten and school holidays; and
(c)not be added on to, but to be in lieu of, the times set out in paragraphs 7-8 hereof.
That the parties retain a communication book to travel with the children in relation to issues associated with health including medical appointments and medical treatment, sleeping patterns and general noticeable changes in the children’s development.
That by 31 December 2007, each party enrol to participate in a Parenting Orders Program.
That unless otherwise stated in these orders, for the purposes of changeover of the children under these orders, if not at school or kindergarten, the wife deliver the children to the husband at the commencement of any such period and the husband return the children to the wife at the conclusion of any such period.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all extant proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That any exhibit produced by either party be returned after the expiration of 28 days from the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: AYC 274 of 2007

MRS HAWKE

Applicant Wife

And

MR HAWKE

Respondent Husband

REASONS FOR JUDGMENT

The husband and the wife agree that they should have equal shared parental responsibility for their two children L who was born in December 2003 and S born in June 2005. Effectively that is what I might call a notional agreement because in reality, not only do the parties not communicate nor negotiate with one another but each acts in a unilateral way about issues that affect their two very young children. Proposed future discussions seem to me unlikely to bear fruit and with many parenting years ahead, they look remarkably like serial litigators. Notwithstanding that, subject to a concern about their parenting skills each is a good parent and the children are attached to them.
On 23 May 2007, a Victorian magistrate was asked to determine some interim orders about the time to be spent by each parent with these children. His Honour imposed orders on the parties. Leaving aside ancillary issues, the essence of those orders was that the children live with the husband from 8.00am Wednesday to 8.00am Friday in each week and then from 8.00am Friday to 8.00am on the following Monday in each alternate weekend. It is from that position that the parties came before me.
Whilst each party may have espoused that they could work out issues, I was left convinced that they will not do so. Bearing in mind the agreed equal shared parental responsibility, the issue for determination was the amount of time each party is to spend with these two children.
Their respective documentary positions also changed just prior to the commencement of the hearing. The wife’s position changed again at the end of the case.
The wife’s initial position was that the husband should have the care of the children on each alternate weekend from 9.00am on Thursday until 9.00am on the following Monday together with a period from 9.00am on the following Thursday until 9.00am on the following Friday morning. That is, five out of 14 days in each fortnight. At the conclusion of the husband’s evidence she reverted to Friday through to Monday with the earlier position as a “fallback” one.
The husband’s position was that he agreed with the proposition about the Thursday through to Monday in each alternate weekend but wanted from Wednesday night at 5.00pm until the Friday at 5.00pm in the second week. That is, he wanted six out of 14 days.
The husband wanted Thursday and Friday because he has recently changed jobs and does not work on those days. The wife’s desire to eliminate the Thursday from the husband creates a difficulty.
At the commencement of the case, I expressed the fact that because of the age of the children, they (or perhaps more correctly, the Victorian magistrate) had gone too quickly too early and they therefore might contemplate a retreating position from which to build up by steps as the children got older. On this issue, the wife proposed that in the last three months of 2009, some form of mediation take place with a view to increasing the time between the husband and the children to a shared care arrangement. In cross-examination, she said that that meant an equal sharing of time but her counsel later described that as something she would be “open” to. The husband proposed that 12 months from now, he move back to the position that already had been imposed upon the parties by the Victorian magistrate.
The parties had attended upon a family consultant as a result of an order of the Court and I had a very comprehensive report from her.
These children have also been cared for in a significant way by Mrs B who has been a paid carer. It now transpires that Mrs B will be discontinuing her care for reasons that became more than apparent in her evidence. That will mean that the children will now have another carer in their life. The wife has enrolled the children in a commercial daycare centre.

Background

The husband is 35 years of age and the wife is 33. They both work. Neither is employed on what might be described as a full-time basis.
The parties commenced their relationship in July 1997, married in April 2000 and finally separated in October 2006.
Subsequent to the birth of the children, the husband worked on a full-time basis most days between the hours of 8.00am and 5.00pm or 6.00pm and was away at times for work purposes. During that time, the wife was mainly responsible for the care of the children. Ms D, the family consultant described the mother as the predominant parent.
The parties then bought some land and built their own home. The husband was significantly involved after work hours and on weekends in that building. The husband is to be commended for that but it meant that the task of the care of the children who were then very young fell to the wife. The house was completed just before separation occurred.
The husband’s time with the children immediately after separation was best described as occasional. To some extent, the husband’s time with the children was at the whim of the wife.
In February and March 2007, there were incidents involving the parties which precipitated the application being filed by the wife on 8 March 2007 in the Wodonga Magistrates Court. In that application, she sought that the children live with her. The husband filed his response on 2 May 2007 and then sought a shared residence. On the evidence, it is clear that as at the time that the husband filed his response, what he was seeking was a departure from what would otherwise have been the norm for these children.
In 2007, the children spent time each week in a day care centre with Mrs B. The wife was then working on a part-time basis and it seems that she chose Mrs B.
On 23 May 2007 in the Wodonga Magistrates Court, the magistrate made the orders I mentioned earlier. The magistrate was sufficiently concerned about the relationship to the extent that he ordered that for the purposes of changeover of the children, the parties were to collect the children from Mrs B or otherwise, make arrangements through the local Children’s Contact Service. Specific orders were also made for telephone communication between the parties respectively and the children. No limitations were placed on the timing of those calls but it is interesting to note that as at May 2007, the child L was 3½ and the child S not quite two years of age.
Notwithstanding the orders, even the telephoning of the two children has been a problem according to the husband. It is probably not surprising having regard to the ages of the children, a fact acknowledged by the husband.
The learned magistrate went on in the orders which I am told were also drafted by the parties at his instigation, to restrain the parties from denigrating each other to the children or in their presence. The orders then set up a communication book for use by both parties and I shall turn to that in the evidence. The proceedings were otherwise transferred to this Court.

The wife’s evidence

Contrary to the rules, the wife relied upon all previous affidavits filed. The difficulty in that is that some of the material overlaps, some is dated and irrelevant and it makes it difficult for the other party to know just what evidence is being put forward that requires challenge.
The wife set out that in February 2007, an agreement was reached that the husband would have the children for two nights and that he was to return them at 9.00am on a Friday morning. The husband failed to return the children and when she telephoned him to protest, he replied “too bad. I want them”. He returned them 1½ days later. This is the first indication of the unilateral nature of the husband’s approach to parenting.
The wife then said that just over a week later, the husband and his sister arrived at her door at almost 11.00pm. The husband disputed this saying that it was between 10.00-10.30pm but it seems to me to matter little. The husband demanded to know when he was to next have the children. He may have very well have been justified in that complaint but my concern was the time of night and the fact that he was accompanied by his sister. The wife said that she was not prepared to discuss it at that time but the noise of the parents awoke L and the wife said and I accept, the father called out to L. When the wife refused to allow the husband to see the children perhaps justifiably for the time of night, he then went to the garage and removed two children’s car seats. When questioned about this, the husband said that they were not used.
This particular incident set the scene which on my understanding of the evidence, subsists nine months later. It is not surprising that the parties are before the Court.
In her affidavit to the State Magistrate, the wife said “I say that the children’s welfare is at risk”. The wife in making that statement referred to the fact that the husband had “flagged” that he would take the children from the day care person without her “permission”. She then went on to say that she would never stand in his way of spending time with the children but that it was intolerable for him to simply collect the children whenever he felt like it.
The wife was cross-examined about all of this and indicated that she did not think that the husband was a competent parent. I found this rather odd having regard to the fact that she was proposing that he have a significant amount of time caring for the children. In reality as I have pointed out, the parties’ dispute was about one or two days per fortnight. The two concepts do not sit comfortably at all.
The wife filed another affidavit in the State Magistrates Court and set out that the husband was really not “sincere” about his commitment to the children. She made some rather strong statements that the children were not a priority for him and that his desire for equal time was “insincere”. Much of the affidavit is argumentative and opinion and not terribly helpful. In cross-examination about this issue, the wife reiterated her view that the husband was not sincere in his desire and that in reality, he was simply endeavouring to hurt her. If that was her view, I could not find that to be the case on the evidence.
The wife went on to say in her May affidavit that the husband although in full-time employment was not paying his obligations according to the child support assessment and was in arrears. That situation now seems to have remedied itself to some extent because the arrears are now substantially reduced but the wife went on to say that as a result of the husband’s recent change of occupation and in particular, the number of hours that he now works, her child support has not only been eliminated but as a result of her employment, she will now have to pay him.
The wife went on to say in her May affidavit that the husband did not respect her parenting responsibility for the children. She gave an example of the husband taking S to the doctor for a chicken pox vaccination without first advising her of his intention to do so or more importantly to obtain her agreement. That incident became more unusual when the wife found out that the husband had directed that the vaccination notices and any other medical correspondence concerning the children were not longer to be sent to her but rather to his sister’s address which is now his address. Whilst I accept the husband’s innocent explanation, it shows he did not think about the other parent of his children.
Against that however I have to take into account that the wife unilaterally enrolled the child L in kindergarten and in school and although she indicated that there were not a lot of options open to her, she did not consult with the husband and in cross-examination, gave the impression that she did not see that she needed to do so. The impression she created was that if the husband was unhappy about one of the options, he could voice an opinion. The impression I have however is that the husband has been compliant about those sorts of decisions notwithstanding the fact that in May 2007 in the Magistrates Court at Wodonga and again in the proposals before me, he sought equal shared parental responsibility. Other examples of the unilateral nature of the wife’s behaviour were her demand that the husband not have the children’s hair cut and insistence upon nappy changing methods. Because the parties do not talk to one another, the wife adopts a “managerial” role and in most cases, the husband complies.

What is clear to me is that the wife does not intend in the future to include the husband in the various activities of a significant nature associated with the care of the children.
Subsequent to the orders that were made on 23 May 2007, the wife said that there have been problems.
The wife highlighted the fact that the children are bewildered by the frequent changing of accommodation between herself and the husband. She said:
The uncertainty in the children’s lives has caused them to be clingy and weepy and they resist a regular routine of going to bed. This is in stark contrast to their settled sleep pattern prior to the separation.
What the wife does not say but probably should is that the children’s day is also disrupted by the various times that they also spend with the third significant person in their life namely Mrs B. Both parents have been delivering and collecting the children from Mrs B. That is about to change again.
In an affidavit filed on 23 October 2007, the wife said that she did not dispute that the husband was “well-intentioned” but she believed that he wanted to exclude her role in the children’s life rather than work cooperatively. I found that statement hard to accept.
The wife then made the observation that the continuing anxiety and insecurity about the frequent changes of residence was a good example of the adverse effect on the children of the husband’s “unwillingness to cooperate” with her. I find it is mutual.
Although it was not in her affidavit, the wife said that it was clear that the husband was speaking to the children about her in a negative way. She gave examples which included the fact that the children told her that their father said he still “loved” their mother and that their mother was “naughty” and similar destructive themes. None of this was in her affidavit. The husband mostly denied it was happening.
I have the objective evidence of Mrs B who not only heard it but noticed it on a number of occasions in the presence of the children as a result of which, she had determined to cease acting as a baby sitter for these children. I find that the husband was using the words alleged.
I have set out above several of the negative things about the wife. Apart from those matters, there is little doubt that the wife has a close, warm and loving relationship with the children. Ms D who was the family consultant, reported that she observed the wife to be caring, firm and responsible. Although not in her report, Ms D opined that the wife was probably the primary attachment figure.
All of the negatives to which I have referred affect the question of whether or not in the future I should leave open the possibility of the parties renegotiating any orders that I might make rather than endeavouring to predict what might be in the best interests of the children in the future by making final orders. The question of the dispute between the parties about the extra days in 14 seems to me to be irrelevant to the issues to which I have mostly referred. That latter issue really is best determined by my subjective analysis of the capacity of each parent and the children to cope and in particular by reference to the matters set out in s 60CC of the Act to which I shall turn. To a very large degree, I am relying very heavily on the expert advice of the family consultant in relation to what period of time is best for children of the ages of L and S. The evidence of the wife has convinced me that there is little prospect that the parties could negotiate any permanent solution whilst they feel the way they currently do towards each other.
In cross-examination, the wife even made observations on two occasions that she had intended to come and negotiate matters at court notwithstanding the fact that she had put her forensic position in her case outline document. Accordingly, I have little confidence that the parties and in particular the wife in this case can resolve the matter by reference to negotiation and mediation.

The evidence of Mrs B

I have already made reference to Mrs B earlier. Rather than have her attend the court for cross-examination, it was my suggestion that she be able to give any evidence by telephone and the parties agreed. Mrs B filed an affidavit very late in the proceedings but it was telling.
Mrs B told me that both parties had a good relationship with the children and she saw them as good parents. However, Mrs B was very quick to complain about the negatives of the husband. Those negatives were consistent with the concern of the wife in that the husband attended at the home of Mrs B at the time when he was with the children and in their presence and hearing, said things like :
[The wife] can’t cope with the girls as well as me.
[The wife] doesn’t know how to feed them properly.
[The wife]’s hopeless.
She doesn’t have a clue.
Mrs B told me that the last of these sorts of discussions occurred about August and they had obviously been going on for some months. She linked the earlier problems to court cases which in this case occurred in February, March, April and May 2007.
Mrs B’s complaint was really that the husband said the things in the presence of the children. She was challenged that the children were not in immediate earshot but it became apparent that in her view they were in the kitchen where she and the husband were standing when the conversations occurred and there was little doubt in her mind that the children heard things. That is consistent with the children saying things to the wife as I have set out above.
The one subject that caused significant consternation for Mrs B however was an incident earlier in the year about which she was very critical of the husband.
It seems that the parties had two motor vehicles. One was a utility and the other was a Ford sedan. The parties had been reasonably sensible up to a point in time wherein whoever had the children took the sedan and the other the utility. The parties had a dispute about all of that and the husband came and took the car which was parked at Mrs B’s home. What was bizarre about the incident was that the husband spoke to Mrs B first indicating that he was going to take the car back from the wife who had earlier said that she would not give it to the husband any longer and Mrs B told the husband that he was not to remove the car from her on the basis that at her place, it was “neutral ground”. Notwithstanding that warning and exhortation, on 29 June 2007, the wife arrived at the home of Mrs B and went inside her house with the children during which time, the husband entered the property and took the motor car. The wife was distressed according to Mrs B and the children witnessed the whole bizarre fallout. Mrs B then drove the wife and the children home. Subsequently when Mrs B next saw the husband she tackled him in what could only described as a vociferous way and he appeared to have been suitably admonished.
It was as a consequence of all of these things that Mrs B said that she had “stuck it out” for the sake of the children and the wife but she now found herself “on tenterhooks” dealing with the husband and had decided not to put up with it any further. She said that she had intended initially to remain out of the court proceedings but as a result of what she had heard, ultimately entered the fray.
Mrs B gave me the impression of being an honest and forthright woman who was passionate about the welfare and care of the children and as a result of her decision not to continue in that role, I was left with the impression that the children are worse off. The husband must take the responsibility for that.

The evidence of the husband

The husband’s evidence was that at around the time of separation, he spent a lot of time with the family. He helped in putting the children to bed but I accept that his role was limited.
Immediately after separation, the husband said that he had the children from Sunday through to Wednesday and that he and the wife were able to communicate. I am not entirely clear about what time was spent but I tend to prefer the version of the wife. It matters little in the long run.
The husband acknowledged that the relationship from November 2006 onwards was not good and that it got to the stage that he was not able to see the children at all. He said that the wife was away in February for two weeks but when cross-examined, he acknowledged it was not that long. The picture portrayed in the affidavit is that he was not able to contact the children but I do not accept that. I find that he knew where the children were and would have been able to telephone. More importantly, the distance between where he lived and the children were staying, was not all that far in country miles.
The husband also made reference to the incident that occurred on 5 March where he attended at the wife’s home with his sister. He said in his affidavit that he expected the wife to call so that they could make further arrangements for the children and he went on to say that he expected the wife to be at home as a result of a discussion that he had had with her mother. He did not mention in the affidavit that it was 10.55pm at night or as he said between 10.00pm and 10.30pm. To try and negotiate something at that time of night accompanied by his sister as I have said, was inappropriate. He went on to say that voices were not raised and he did not go into the house and did not cause a disturbance. I find that the wife’s version is the more plausible and I accept her evidence in respect of that.
The husband said that the magistrate at Wodonga gave some indication as to what he proposed to do and the parties then negotiated the balance of the drafting. He went on to say however that since that time things have worked well and he and the children are well settled. He made a rather strong statement in his affidavit that he and the day carer Mrs B have an “excellent relationship”. As a result of the evidence that I have set out above and what I heard from Mrs B, nothing could be further from the truth. Whilst that may very well be his perception, I doubt very much whether that was a truthful statement having regard to what Mrs B said were her strident criticisms at the time that the car was taken. Mrs B had conceded in cross-examination that she at no stage had criticised the husband or stopped him from speaking ill of the wife in the presence of the children and to some extent, she had been the shoulder to cry on in confidential conversations with him. Whether or not Mrs B should be criticised for not stopping the husband, the more important issue is the fact that the husband was making the observations about the wife in the presence of the children. As I said I have accepted what Mrs B says about the presence of the children in the kitchen. Under those circumstances, the husband’s evidence that he has an excellent relationship with Mrs B is hard to follow.
The husband also said that there have been very few problems about the interim orders and he certainly saw no problems of the nature described by the wife in relation to the behaviour of the children.
The husband made the comment in his affidavit that the only problem he saw was in relation to his telephoning the girls. He said he would appreciate it if the wife followed not only the letter of the orders but also their spirit by enabling him to communicate with the children. Having regard to my earlier observation about the young age of the children, I found that rather odd from a parenting perspective. It is hard to imagine children of those ages wanting to spend time on a telephone communicating with the husband in the way that he suggested.
The husband’s affidavit went on to say that he wanted to have a shared care arrangement but I now accept that as result of the position put by his counsel at the opening of the hearing, that is something that he is prepared to accept should wait. He made clear that he still wants equal time now (not necessarily week about) and wants week about as soon as practicable.
In respect of the time that he is involved in their lives, the husband said that he loved being with the children and participating in their activities. I have no doubt as a result of what I heard from Mrs B, apart from the criticisms to which I have just referred, the husband is a very competent parent and the children enjoy his company. That is not the issue here.
The problem between the parties is that they cannot communicate and their attempts to do so through the communication book do not seem to have been entirely successful either. The husband indicated that he was prepared to go to a family consultant or a family relationship centre to try and facilitate an improvement of the parenting relationship but when I asked the wife in the witness box about that situation, she said she was prepared to go but was very pessimistic about the prospects of success. She blamed the husband. I am not entirely sure whether that is an accurate reflection of what is going on.
Having regard to the fact that the wife was prepared to ensure that the children spent a significant time with the husband even on an interim basis, it is hard for me to make any other finding other than that he is a competent and caring parent. I am quite convinced that he has some unresolved issues in relation to his relationship with the wife. The husband gave his evidence in a mild-mannered and forthright way. He is very much involved in the lives of the children.

The evidence of the family consultant

Like her observations about the wife, the family consultant expressed the view that the husband impressed as a devoted and loving father.
The family consultant did not have the benefit that I had of seeing the parties tested under cross-examination.
However, what became abundantly clear from the evidence of the family consultant was that her concern related to the ages of the children and the fact that they had relatively recently had to change from a situation where they had a predominant attachment to the wife to suddenly be separated for considerable periods of time interspersed with daily contact with Mrs B. In that context, the family consultant considered the question of what was appropriate for these children and in particular whether an equal shared arrangement was appropriate.
Ms D opined:
34.Equal time arrangements offer benefits to children, but they must be developmentally appropriate and tailored to suit the unique needs of the children and the circumstances of the family. The challenge in relation to arrangements for toddlers and preschoolers is to balance long enough periods to enable relationship growth, children experience intolerance of prolonged separation from the absent attachment figure and too high frequency of changeovers can be unsettling.
35.The behaviours commented upon by the mother when the children seek reassurance of her whereabouts and that at times they are needy and weepy, could indicate that they are feeling insecure or anxious. When children are uncertain if and when they are going to have access to a secure attachment figure their anxiety would be heightened. Until very recently the mother had been the children’s predominant parent and they would have looked for their mother in the first instance to have their emotional needs met.
36.The move between the parental homes is quite frequent and would require significant adjustment on the part of both the children. Presently it seems that they do not have an understanding of which parent they will spend the night with and over time this could be experienced as chaotic and unsettling to them. The further risk to the children if this was to continue and if they were not having their security needs met is that they could manage by dampening or closing down their emotional responses. These present circumstances potentially could result in the children not establishing a sense of belonging in either parent’s household and in the long term could compromise their emotional development.
37.Consistency to the children has been provided by their family day carer and her presence would have provided a buffer for them as they were required to adjust to changes in their living arrangements. However there are no guarantees that this child care arrangement would always be available or utilised by the parents.
38.In the writer’s view the children at their tender age and stage of development would benefit from a parental arrangement which offers them an opportunity to gain a sense of belonging in both their parents’ households and which reduces the frequency of transitions which presently exists. When considering this family’s unique circumstance, the father’s future part time employment would perhaps offer significant advantages in regards to the children’s living arrangements. Also the mother’[s] workplace requirements allows her to spend the Monday and Tuesday with the children.
…
41.The suitability of changing the arrangements when the children enter primary school could be considered and an assessment of the children would be important in order to evaluate their readiness for such. An increase in time that resembles a school routine would potentially offer benefits to them. School age children usually benefit from arrangements which reflect the routine of the school week, and a week about arrangement becomes more suitable.
Ms D was clear in saying five days away from the other attachment figure was too long. That must include the husband. She said for a child under three years of age, the appropriate gap was three days. Her concern was that otherwise, the child would not gain a sense of belonging with the secure attachment figure.
Ms D’s evidence was that stability was important. All of this simply pointed to the importance of regular time in both households. However, that could only successfully work if there was shared parenting as opposed to parallel parenting. Parallel parenting is where each parent “does their own thing”.
According to Ms D, parallel parenting creates vulnerabilities for children at this tender age. If nothing else, it must create confusion. She said that children need a predominant parent notwithstanding they are attached to both.
Ms D said that a week about arrangement for S was therefore inappropriate until she was at least four. Even so, I envisage difficulties where the parents do little to work together and have different styles of parenting.
The husband points to his compliance as an indication of his ability to work with the wife but he also ignored a nappy change method suggested (or demanded) by the wife because he had spoken to other people who obviously did not agree with the wife. The disagreement is not an insurmountable hurdle but what is concerning is that each did not discuss with the other what was happening.
Of some concern was how the wife knew of these problems. So was the husband’s statement that he did not know what was happening in the wife’s house and so he could not comment on whether the children were clingy with the wife.
It is clear therefore that even if I accepted that there is a good attachment to both parents and that too long a gap away from either is not good for the children, I am still left with the view that it is not in the best interests of these children that they be parallel parented in such short bursts with lots of changeover. It must be more important for the children at least until both are at primary school for there to be a predominant household and some stability.
Accordingly, I could not say equal time at the moment on the evidence I have heard is in the best interests of the children. In addition, where there is a welfare conflict between continuing the attachment of the children to each parent as against ensuring a predominant household, the latter must be seen to be in the best interests of the children.

Parenting orders

As to what parenting order I should then make, it is important to look firstly at the objects and principles of Part VII of the Act.
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(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 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
Section 61DA requires that I apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The parties have agreed upon that course of action in respect of the orders that they propose. However s 61DA is a pathway that leads the Court to determine the amount of time that should be spent by children with their parents based upon the presumption of equal shared parental responsibility. This exercise needs to be undertaken before the determination of any parenting order.
The presumption may be rebutted in s 61DA if there is family violence and I find that there is not. However, the presumption may be rebutted as set out in s 61DA(4) from a determination that it is not in a child’s best interests that it be applied. The section says:
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Whilst it might be appropriate for these parents to have equal shared parental responsibility, I have considered equal time and say that it is currently not in the best interests of the children for that to occur. The legislation requires me to contemplate significant and substantial time and in this case, I propose to make orders that give the husband time both of a leisure nature as well as doing things during a weekday with the children when they are at kindergarten and school.
Should there be any doubt about the presumption here however, I would have little doubt that it is not in the best interests of the children at the moment for it to be applied.

The best interests principle

Section 60CA is fundamental. It says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2)      The primary considerations 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.
Additional considerations
(3)      Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Section 60CC factors

There is little doubt in my mind that there is currently a meaningful relationship between the parents and the children and that the children are benefiting from it.
There are clearly inherent tensions between the parties and whilst the children are of the ages that they are, those tensions may not manifestly appear but I suspect that unless the parties do sort out their personal problems with each other, the children will suffer in due course.
The legislation requires a court as a primary consideration to consider the need to protect the children from psychological harm of being exposed to family violence. Family violence has been defined in the Act and I am not satisfied that there is any situation here where the wife could be said to be in fear of the husband. What is clear however is that the wife has concerns supported by Ms B that the children are being psychologically damaged by the husband speaking about her in a denigratory way.
I have taken into account the fact that the children are far too young to have a view about what they want to see from their parents but I suspect that what is really happening is that the children have a strong attachment to their mother and that the duration proposed by the husband stretches the limit of their endurance at their current ages in being away from their mother.
I am otherwise satisfied to say that the nature of the relationship of the children with each parent is good save for the reservation to which I have just referred.
I have strong doubts about the attitude of both parties in respect of their willingness and ability to facilitate and encourage the relationship with the other. I suspect that what the husband has been doing as I have outlined is more as a result of his unresolved feelings for the wife arising out of the breakdown of the marriage rather than being deliberately irresponsible as a parent. I do not find that there is any evidence of a similar nature about which I could criticise the wife.
In making any orders that I do, I have taken into account the effect of the changes on the children of the separation of them from each parent. It seems to me on the evidence that the children can happily and securely be away from their father for much longer periods than they can be from their mother. To that end, I rely on the evidence of the family consultant.
There is no practical difficulty in relation to the children spending time with each parent.
Each parent according to the family consultant has the capacity to provide for the needs of the children including their intellectual and emotional needs and I am not concerned about that.
There are no issues of maturity, sex, lifestyle or culture that affect this case.
Section 60CC requires that I take into account the attitude that each parent has to the children and their responsibilities that they have demonstrated in relation to parenthood. There is a very big question mark about whether or not the husband understands that it is a responsibility of parenthood to protect the relationship of the other parent with the children and to foster it. If he is unintentionally damaging the relationship between the girls and their mother, it must stop. Equality of time must take a secondary position to what is in the best interests of the children. Whilst I have been critical of the husband, I am equally critical of the wife for her unilateral acts in relation to major decisions concerning the children. To a large degree, that is a symptom of a poor level of communication and her explanation that she cannot negotiate with the husband is not a basis to say that there ought not to be some written communication between the parties about what she is proposing for the future of the children.
As I have pointed out there are no family violence issues in this case about which I would be concerned.
Section 60CC(3)(l) requires that I should take into account whether it would be preferable to make an order that will least likely lead to the institution of further proceedings. In my view, the proposal by the wife is fraught with difficulty having regard to her professed pessimism about any prospect of negotiation even allowing for time to settle and heal wounds. In my view, this is a case where these children need to know that they will have a significant time with each parent and I see no reason for that to be done in a hurry in this case. The orders I propose will allow the children to settle into a routine which can be increased over a period of time whilst at the same time, the parties can settle their own personal differences by attending an appropriate parenting course.
Section 60CC(4) requires me to take into account the way in which the parents have taken opportunities to participate in the lives of their children as well as to facilitate the other parent doing so. I have reservations about the role that the wife has played in the same way that I am critical of the husband for his destructive behaviour. However leaving that aside, each of the parents has otherwise decided that they have the children’s interests at heart.
I say that I have taken into account all of the matters that have occurred subsequent to separation.
Notwithstanding the reservation of the wife and the family consultant about when these children will be ready to proceed to a week-about arrangement, I am satisfied on balance that it is more important that there be certainty in the lives of everyone including the children. There will be sufficient time for both children to build up the time they spend with their father to the point at which they are both at school whereupon the arrangement can commence on a week-about basis. In the family consultant’s view, they should be ready for that regime then.
Accordingly, I say that the orders that I propose are in the best interests of the children.

I certify that the preceding Ninety Nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date: 27 November 2007

[2007] FamCA 1384

27 November 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Jurisdiction

Procedural Fairness

Remedies