Hickory and Hickory

FAMILY COURT OF AUSTRALIA

HICKORY & HICKORY

[2007] FamCA 1468

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Child’s views

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hickory

RESPONDENT:

Ms Hickory

FILE NUMBER:

PAF

250

2006

DATE DELIVERED:

19 October 2007

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

22 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Michael Brown

Browns the Family Lawyers

Orders

I make the following orders:

That all existing parenting orders in relation to the child R born … March 1996 (‘R’) be discharged.
That the parties have equal shared parental responsibility for R.
That R live with the mother at all times other than the periods specified in order 4, during which she will live or spend time with the father.
That R live or spend time with the father during the following periods:
4.1each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (‘Week 1’)
4.2from the conclusion of school on Tuesday until the commencement of school on Thursday in each other week (‘Week 2’)
4.3from the conclusion of school until 6:00pm on each Wednesday and Thursday in Week 1 and on each Monday and Friday in Week 2
4.4for one half of all school holidays, being the first half in 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter, unless the parties otherwise agree and subject to orders 5,6 & 7
That R spend the period from 4:00pm on Christmas Eve until 7:00pm on Christmas Day with the mother in years when she is in the care of the father for the first half of the Christmas school holidays, unless the parties otherwise agree.
That R spend a minimum period of 2 hours on her birthday with the parent with whom she is not living, at times to be agreed or from 4:00pm until 6:00pm in default of agreement.
7.1 That the father deliver R to the mother at 9:00am on Mothers Day and collect her at 6:00pm, if she is in his care on that day.
7.2That the mother deliver R to the father and collect her at 6:00pm on Fathers Day, if she is in her care on that day.
8.1 That the father collect R from and deliver her to her school for the purposes of implementation of order 4.
8.2That, unless otherwise specified, or the changeover occurs at R’s school, the mother shall deliver R to the father’s home and the father shall return her to the mother’s home at the commencement and conclusion of all periods of time stipulated in these orders.
That the operation of order 4 is suspended during the school holidays.
That, insofar as may be necessary, the mother give all authorities required to permit the father to receive information concerning R from:
10.1her teachers and school principal
10.2any treating health professional
from time to time.
That the parties be at liberty to vary the provisions of these orders by agreement in writing between them from time to time.
That the father have liberal telephone contact with R.
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 material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 250 of 2006

MR HICKORY

Applicant

And

MS HICKORY

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Hickory and Ms Hickory are unable to agree as to how much time their daughter R should spend with each of her parents. R was born in March 1996 and is now 11 years old.
When the proceedings commenced on 14 June 2007 there was also a dispute as to settlement of property. For reasons associated with financial issues, the proceedings were adjourned part-heard to 3 October 2007. Before the hearing was resumed, the father and the mother reached agreement as to property settlement and I made orders by consent on 22 August 2007. It remains for me now to determine the parenting issues.
The father proposed that R spend equal time with each of her parents. He set out an arrangement of Friday afternoon until Wednesday morning in each alternate week and Monday afternoon until Wednesday morning in each other week in his Amended Application filed on 28 September 2006. His proposal also made provision for R to spend half of all school holidays and time on special occasions with each of her parents.
In his final submissions the father proposed a week-about arrangement. He explained that the Family Consultant, Dr H, had pressed him to nominate a breakdown of time during the report interviews. I infer that he reflected on the matter between the interviews and the commencement of the hearing and came to the conclusion that a week-about arrangement was preferable for R.
The mother proposed that R live primarily with her and spend time with her father each alternate weekend from Friday afternoon until 6:00pm on Sunday and overnight each Wednesday. She also suggested that R spend half of school holidays with each of her parents. Her proposal made provision for R to spend time with each of her parents during the Christmas period.

BACKGROUND

The father, who is now 52, and the mother, who is now 48, began to live together in March/April 1991 and married in July 1991. They separated initially in December 2003, then reconciled early in 2004 and lived together until their final separation on 9 September 2005.
The father has four sons from a previous marriage, all of whom are now adults. The mother has no children other than R.
It is common ground that, in December 2003, the father suffered from what both parties referred to as “a nervous breakdown”. He was admitted to a Clinic for about six weeks in June/July 2004 and diagnosed with clinical depression. He has received assistance from a psychiatrist, Dr G, and a psychotherapist, Dr M, since that time. Presently he takes medication to control his depression, hypertension and diabetes.
The father’s health has prevented him from working since 2004, although he has taken on some limited employment as an education professional recently. His area of expertise is in economics and he hopes to return to this field in due course. Currently he receives financial support from an income protection policy.
After the final separation the mother and R moved into a rented apartment in the western suburbs of Sydney. The father lives in a rented townhouse in the western suburbs, close to R’s school.
On 31 October 2005 interim orders were made by consent, which provided for R to spend time with her father from after school until 6:00pm on Wednesday and Friday and until 7:30pm on Tuesday and Thursday, as well as all day on Sunday. These orders provided for short overnight stays during the Christmas period.
Although communication between the father and the mother is problematic, they have negotiated variations to these interim orders. For example, R went on a camping trip with her father on June 2006.
On 22 January 2007 further interim orders were made by consent. These orders provided for R to spend time with her father each alternate weekend from Friday afternoon until 6:00pm on Sunday and each Tuesday overnight. There was also provision for R to spend time with her father for half of all school holidays and on special occasions.

THE EVIDENCE AND WITNESSES

Only the parties gave evidence in their respective cases. I had the benefit of a report from Family Consultant Dr H, dated 30 August 2006. Dr H was not required for cross-examination.
The Family Consultant recommended that R spend time with her father each alternate weekend from Friday afternoon until Monday morning and “at least one additional night per week”, as well as two afternoons per week and half of all school holidays. He suggested that these arrangements be reviewed, if there was a deterioration in the father’s health. Dr H’s recommendation for two afternoons per week was contingent upon the father remaining out of the workforce.

APPROACH TO THESE PROCEEDINGS

The legislative provisions which govern parenting issues are contained primarily in Part VII of the Family Law Act. The objects of this Part are set out in section 60B(1) and, in summary, provide that children’s best interests are met by:
·    ensuring that children have the benefit of a meaningful involvement of both parents in their lives to the maximum extent, consistently with their best interests
·    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
·    ensuring that children receive adequate and proper parenting to help them achieve their full potential
·    ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in section 60B(2) and include the following:
·    children have a right to know and be cared for by each of their parents
·    children have a right to spend time on a regular basis and communicate with both parents and other people significant to their care, welfare and development, for example, grandparents and other relatives
·    parents should jointly share duties and responsibilities concerning the care, welfare and development of their children.
These principles are expressed to be subject to the best interests of children.
In deciding whether to make a particular parenting order the court must regard the child’s best interests as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court must have regard to the primary and additional considerations set out in section 60CC.
Section 61DA(1) obliges the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4)
The presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. If there is an order for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent: section 65DAA(1). If there is an order for equal shared parental responsibility but the child is not to spend equal time with each parent, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA(2).

THE PRIMARY CONSIDERATIONS

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There was no suggestion from either party that there is any need to protect R from abuse. Each of the father and the mother readily acknowledged the benefit to their daughter of a meaningful relationship with each of her parents. The primary considerations require no further analysis.
In my view, this dispute arose because the father has an understandable wish to spend as much time as possible with R, whom he loves dearly. On the other hand, the mother has understandable concerns arising from the impact of the father’s depressive illness on his capacity to cope with everyday life. Not surprisingly, she wishes to protect R from any risk in the care of her father. She, too, loves R dearly.

THE ADDITIONAL CONSIDERATIONS

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

R discussed her views as to what parenting arrangements she would like with the Family Consultant. She said that she was “okay” with the current arrangement that allowed her to see her father on most days of the week. That arrangement, of course, was superseded by the consent orders of 22 January 2007.
Dr H discussed with R her reaction to the prospect of spending equal time with each of her parents. He reported as follows:
“When presented with her father’s proposal that she spend equal time with both parents, [R] voiced two positive aspects of such an arrangement. It would mean that she could enjoy more bike riding with her father and it would be fair to both her parents. She was unable or unwilling to nominate any disadvantage of such an arrangement.
[R] indicated that she worried about both of her parents but did not identify the precise reason for her anxiety. She admitted that she wanted to avoid hurting either of them. [R]’s anticipated response to an order continuing the present arrangement was ‘I don’t know how I would feel’. She said that she would feel ‘good’ about an order in accordance with her father’s application but she would feel ‘not so good’ if the equal time was on the basis of alternate weeks with each parent. [R] thought that spending more time with her father than with her mother would not be fair to her mother.”
Dr H’s assessment of R’s stated views was as follows:
“[R]’s fondness for her father is undisputed. She enjoys being in his company and the sort of activities they share, albeit within a very limited time frame. [R]’s resolve to avoid as much as possible discussing her living arrangement suggests that she is stressed by the present litigation. She looks to assume the role of caring for both parents and so is at pains to avoid hurting them by expressing any views that could possibly be construed as favouring one over the other. This girl strives to be fair to both parents.”
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons
The evidence indicated clearly that R enjoys a very close, loving relationship with each of her parents. The father made no suggestion of any difficulties in the mother/daughter relationship. The mother said in her affidavit sworn on 29 September 2005:
“…..I have no doubt of [the father]’s love for her and their close attachment …..”.
section 60CC(3)(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;
Each of the father and the mother alleged, in effect, that the other has created difficulties over R’s time with her father. It seemed to me that these issues were generated, to a large extent, by their inadequate communication.
For example, the father complained that the mother refused to allow R to accompany him to certain rugby matches, implicitly for no good reason. The mother’s version was that she was given insufficient details, in circumstances where she knew that the father’s depression made him anxious in crowd situations.
Overall, I am satisfied that each of the father and the mother recognises the importance of the role of the other in R’s life. It may be that their communication will improve now that the litigation is completed. It was encouraging to note that the father said in his oral evidence: “[The mother] and I need to communicate for [R]’s sake”.
section 60CC(3)(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;
Dr H specifically addressed the potential impact on R of an equal time arrangement. He reported as follows:
“This assessment is that [R] will benefit from continuing to have the opportunity to develop a relationship with both of her parents. The geographical proximity of her parents’ homes allows her to move freely between one and the other, even more so as she gets older. Because of this proximity and [R]s age, there seems no reason for her not regularly to stay overnight with her father, unless his psychological health were to deteriorate to such an extent that his capacity to look after himself, let alone his daughter, is substantially impaired.”
Dr H said also:
“[The father]’s wish for [R] to spend equal time with him and her mother is a substantial change from the current family arrangement and is unlikely to benefit [R]. [The father]’s capacity to deal with the day to day demands of parenting a daughter on the verge of puberty, particularly of achieving his goal of returning to work, is largely untested. Moreover [R] appears to be at some risk in such an arrangement of being caught up in her parents’ defective communication patterns.”
I have no reason to disagree with these expert opinions of Dr H. Although he was addressing the father’s proposal as set out in his Application, Dr H’s concerns are also relevant to a week-about arrangement.
I appreciate that the father considers that a week-about regime “will maximise the possibility for [R] to have a good relationship with each of us”, to use his words. I accept entirely that no part of his motivation for seeking such orders is “to take [R] away from her mother”, again to adopt his words. Ultimately, the question is what arrangements will benefit R.
section 60CC(3)(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;
The father and the mother live in close proximity to each other and to R’s school. No issues of practical difficulty and expense arise.
section 60CC(3)(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;
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Regrettably, there was no evidence from the father’s psychiatrist or psychotherapist as to his current condition. He said that he no longer suffers from sleep disturbance and that his overall condition is much improved.
There is no doubt that the father’s depressive illness had a serious impact on his ability to function and cope with everyday life. These difficulties were described as follows by Dr H:
“[The father]’s depression has prevented him from working for the best part of 3 years and it has had serious repercussions for his quality of life. It has resulted in what seem long periods of isolation during which his capacity to function has been severely impaired.”
I am inclined to accept that the father’s condition has improved significantly in recent times. He conducted his own case, which is no easy task for any litigant in person. As well, he has managed to recently undertake limited work as an education professional. The father told Dr H that he had noted “a significant change in his depressed condition” in the August 2006 interviews.

It did not seem that the mother’s opposition to the proposal for equal time was based in any substantial way on concerns for the father’s ability to care for R. Rather, in her affidavit sworn on 5 June 2007 she said:
“I believe that the current arrangement for mid-week time is good for [R] but I am concerned that more time during the week would be disruptive to things like homework and [R]’s general stability.”
Her proposal that R spend half of all school holidays with her father does not suggest that the mother has real concerns as to his ability to properly care for her.
The mother also expressed a concern that the father may denigrate her to R. The reality, of course, is that he could do so in the time periods which R will spend with her father on her own proposal.
section 60CC(3)(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;
section 60CC(3)(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;
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
section 60CC(3)(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
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 child;
No relevant considerations arise pursuant to subsections 60CC(3)(g), (h), (i), (j), (k) and (l).

THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY

Neither party sought an order for sole parental responsibility. There was no submission on either side that this presumption did not apply or has been rebutted. All of the evidence leaves me comfortably satisfied that it is in R’s best interests for her mother and her father to have equal shared parental responsibility for her.
I am thus required to consider whether equal time with each parent is in R’s best interests and reasonably practicable.
As I have said, an equal time regime is contrary to the recommendations of the Family Consultant. Of course, that determination is for me and I am not bound by the opinion of Dr H.
R is now 11 years old and will turn 12 in March 2008. She told Dr H that she would not like to live in a week-about arrangement. There was nothing in the evidence to suggest that she has been influenced or that her stated views are anything other than her genuinely held wishes. I am thus of the opinion that R’s views must carry significant weight.
I accept and agree with Dr H’s opinion that the father’s “capacity to deal with the day to day demands of parenting a daughter on the verge of puberty” is largely untested. I also agree with his assessment that a week-about arrangement would be a “substantial change” for R. Further, I share his concerns about the potential risk to R, in a week-about arrangement, arising from her parents’ “defective communication patterns”.
For all of these reasons, I conclude that a week-about arrangement would not be in R’s best interests. From the father’s point of view, he would be well advised to concentrate on promoting and enjoying his relationship with R in an arrangement with which she is happy, rather than discontented.
I am then required to consider whether it is in R’s best interests and reasonably practicable for her to spend “substantial and significant time” with each parent. Section 65DAA3 gives some guidance as to the meaning of the phrase “substantial and significant time”, although not in any temporal sense. The indication is that “substantial and significant time” involves week days as well as weekends and the opportunity for parents to participate in a child’s daily routine, together with events of special importance.
In my opinion, R would benefit from spending substantial and significant time with each of her parents. Clearly, she enjoys her time with her father and the activities which they share. Both of her parents have a great deal to offer R.
I can see no reason to depart from the recommendations of Dr H, which were carefully formulated after his interviews with and observations of R with each of her parents. I am satisfied that orders generally in accordance with these recommendations will achieve the result that R spends substantial and significant time with each of her parents.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 19 October 2007

[2007] FamCA 1468

19 October 2007

Key Legal Topics

Areas of Law

Family Law