Horner & Collins
[2008] FMCAfam 58
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HORNER & COLLINS | [2008] FMCAfam 58 |
| FAMILY LAW – CHILDREN – residence – best interests of the child – whether equal time with each parent is in the best interests of the child and reasonably practicable – whether substantial and significant time with each parent is in the best interests of the child and reasonably practicable. WORDS AND PHRASES – “substantial and significant time”. |
| Family Law Act 1975 (Cth) ss.60CA, 60CC, 61DA, 62G, 65DAA |
| Rice v Asplund (1979) FLC 90-725 distinguished |
| Applicant: | DARRYL LUKE HORNER |
| Respondent: | TANIA LOUISE COLLINS |
| File Number: | CRC 88 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 19 – 21 November 2007 |
| Date of Last Submission: | 21 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Priestley |
| Solicitor for the Applicant: | Susan Green |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Respondent: | Cooney Harvey Doney |
ORDERS
All previous parenting orders are discharged.
The children of the marriage BRENDEN OSCAR HORNER born in 2002 and SARAH RACHEL HORNER born in 2003 are to spend time with each parent as agreed by the parties.
Failing agreement between the parties, the children are to live with the mother for the substantial period and spend time with the father every second weekend during the school term from after school on Friday at 3:10pm until the commencement of school at 8:50am on the Monday PROVIDED HOWEVER if the Monday is a public holiday then the children will spend time with the father until the commencement of school on the Tuesday morning.
In addition to the matters set out in Order 3 above the children are to spend time with the father during the school term from after school on the Wednesday until 7:30pm on the Wednesday evening in the week preceding the weekend that they are to spend with him and in the week following the weekend that they spend time with the father from after school on the Thursday until the commencement of school on the Friday morning.
The children are to spend half of each school holiday period with the father at times agreed between the parties and, failing agreement, for the second half in years commencing with an even number and the first half in years commencing with an odd number EXCEPT AS PROVIDED in Orders 10 and 11.
Until Sarah has commenced school the father is to collect both children from the home of the mother and return Sarah to the home of the mother after taking Brody to school on the Monday or the Tuesday if the Monday is a public holiday.
On each of the children’s birthdays if that day is not a school day then the parent with whom the children are not living at the time will spend time with the children from 9:00am until 2:00pm. If the child’s birthday falls on a school day then the parent with whom the children are not living on that day will spend time with the children from 3:30pm until 5:30pm.
The children are to spend the weekend of Mothers’ Day with the mother and the weekend of Fathers’ Day with the father at the times set out in Order 3 above. If the weekend of Mothers’ Day or Fathers’ Day falls on a weekend when the children would otherwise have been with the other parent then the children will spend the following weekend with that parent.
Each parent may telephone the children at a reasonable time at times when the children are living with other parent.
The mother is to spend time with the children from 3:00pm on Christmas Eve until 2:00pm on Christmas Day and the father will spend time with the children from 2:00pm on Christmas Day until 2:00pm on Boxing Day in each year.
During the NSW Gazetted Easter Holiday in even numbered years the father will spend time with the children from 3:00pm on the Thursday until 5:00pm on Easter Saturday and the mother is to spend time with the children from 5:00pm on Easter Saturday until 5:00pm on Easter Monday. In odd numbered years the mother will spend time with the children from 3:00pm on the Thursday until 5:00pm on Easter Saturday and the father will spend time with the children from 5:00 pm on Easter Saturday until 5:00pm on Easter Monday.
In the event that either child is unwell to the extent that it is necessary for that child to remain in bed then that child is to remain in the care of the mother until he or she is well.
The parents are to consult each other with a view to reaching a joint decision on issues relating to the children’s:
(a)health;
(b)education; and
(c)living arrangements.
Each parent is to be responsible for matters relating to the children’s health, education and welfare whenever the children are in the care of that parent.
The parent with whom the children are living or spending time must ensure that:
(a)the children wear approved helmets when riding on a bicycle or motor cycle;
(b)the children wear approved life jackets when riding in or on any boat; and
(c)the children wear approved seat belts when riding in any motor vehicle.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 88 of 2007
| DARRYL LUKE HORNER |
Applicant
And
| TANIA LOUISE COLLINS |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant is the father of two children, a boy who will be referred to as B and girl who will be referred to as S. In his application, filed on 20th March 2007, he seeks the following orders:
a)That the children of the relationship B born in 2002 and S born in 2003 reside with each of the parents in alternate weeks from after school on Fridays and for half of all school holidays with the Father to have the first half in years ending in an odd number and the second half in years ending in an even number.
b)That the parents consult and make genuine effort to come to a joint decision in the event that long-term issues arise in relation to the children concerning:
i)The children’s education;
ii)The children’s health;
iii)Changes to the children’s living arrangements.
c)That each parent be responsible in relation to short-term issues whenever the children are in their respective care.
In a Minute of Orders filed in Court, the father seeks these final orders:
a)i) That the children of the relationship B born in 2002 and S born in 2003 live with the Father from after school on Friday until the commencement of school on Monday each alternate week and every Wednesday from after school until the commencement of school Thursday until the child S reaches five years of age and thereafter from after school on Wednesday until the commencement of school on Monday in one week and from after school on Wednesday until the commencement of school on Friday in the other week and for half of all school holidays with the Father to have the first half in years ending in an odd number and the second half in years ending in an even number; and;
ii) That the children live with the Mother at all other times.
b)That the parents consult and make a genuine effort to come to a joint decision in the event that long-term issues arise in relation to the children concerning:
i)The children’s education;
ii)The children’s health;
iii)Changes to the children’s living arrangements.
c)That each parent be responsible in relation to short-term issues whenever the children are in their respective care.
d)That the children spend the weekend of Mother’s Day with the Mother and the weekend of Father’s Day with the Father from after school on Friday to the commencement of school on Monday and if the weekend should, in the normal course, have been spent with the other parent then that parent will have the next weekend in lieu of the foregone weekend.
The mother has filed an Amended Response, in which she seeks the following orders:
a)That the Orders of the Family Court made on 12 December 2005 be discharged.
b)That the children of the marriage namely B born in 2002 and S born in 2003 (hereinafter referred to as “the children”) spend time with each parent as agreed by the parties.
c)Failing agreement, the children live with their mother for the substantial period and spend time with their father every second weekend from after school Friday at 3:10pm until school time Monday morning at 8:50am.
d)In addition the children spend time with the father from after school Wednesday at 3:20pm until 7:30pm that evening in the week preceding the weekend they spend with him, and in the week following their weekend they spend with their father from after school Thursday at 3:10pm until before school Friday at 8:50am.
e)Until the children are old enough to have internalised the arrangement, the children should be collected from the home of their mother by the father and until S is of school age the father is to ensure B is taken to school on Monday and S is returned to the mother’s home on Monday.
f)That on each of the children’s birthdays if it is a non school day then the parent with whom the children are not living at that time will spend time with the children from 9:00am until 2:00pm. That on a school day that the parent with whom the children are not living on that day will spend time with the children from 3:30pm until 5:30pm.
g)That the children will spend the weekend of Mother’s Day with the mother and the weekend of Father’s Day with the father at the times as set out in Order 3 and if that weekend should have been spent with the other parent then that parent will have the next weekend instead.
h)That the mother and the father will be able to telephone the children at a reasonable time when the children are living with the other parent.
i)That the mother spend time with the children from 3:00pm Christmas Eve until 2:00pm Christmas Day and the father will spend time with the children from 2:00pm Christmas Day until 2:00pm Boxing Day.
j)That during the NSW Gazetted Easter holiday in even numbered years the father will spend time with the children from 3:00pm Thursday until 5:00pm Easter Saturday and mother will spend time with the children from 2:00pm[1] Easter Saturday until 5:00pm Easter Monday. This time is to alternate each year.
k)In the event that either of the children is unwell to a point where it is necessary for them to remain in bed as a result of vomiting or diarrhoea then the children are to remain in the care of the mother.
l)That the parents consult and make a genuine effort to come to a joint decision in the event that long term issues arise in relation to the children concerning:
i)the children’s education;
ii)the children’s health;
iii)changes to the children’s living arrangements.
m)That each parent be responsible in relation to the short term issues whenever the children are in their respective care.
[1] (Sic) Presumably this is a typing error and the mother means 5:00 pm
Background
The father was born in 1976. He is now 31 years of age. The mother was born in 1978. She is now 29 years old.
The parties commenced living together in 1998 and were married on 15th April 2000. There are two children of the marriage, B, who was born in 2002 and S, who was born in 2003.
The parties separated under the one roof on 8th August 2005 and the mother moved out of the matrimonial home on 11th September 2005. The parties were divorced on 13th July 2007.
There were parenting orders made in the Family Court of Australia in 2005.
Both parents have now formed new relationships. In May 2006 the father commenced to live with a lady named Anna Little. In September of that year, the mother commenced to live with a man named Ronald Matthews. Those new relationships are ongoing.
These proceedings commenced when the father filed an application and affidavit in support on 20th March 2007.
On 10th May 2007 this Court made orders until further order providing that the children should live with the father:
a)on alternate weekends from after school on Friday until 5:00pm on Sunday;
b)every Wednesday night from after school until the commencement of school on the Thursday morning;
c)for two hours on the children’s birthdays and the father’s birthday; and
d)for half of the school holidays.
The children were to live with the mother for the rest of the time.
There were also orders proving for the children to spend the weekend of Father’s Day with the father and the weekend of Mother’s day with the Mother.
The court also ordered a Family Report to be prepared under the provisions of s.62G of the Family Law Act 1975.
Evidence
The father relied upon the following:
a)His application filed on 20th March 2007;
b)His affidavits filed on 20th March and 10th May 2007;
c)His affidavit filed in court on 19th November 2007; and
d)The affidavit of Anna Abby Little filed on 4th May 2007.
The mother relied upon the following:
a)Her Amended Response;
b)Her affidavits filed on 8th May and 15th November 2007;
c)The affidavit of Ronald Jeffrey Matthews filed on 8th May 2007;
d)The affidavit of Lisa Collins filed on 8th May 2007; and
e)The affidavit of Andrew James Collins.
I have read all of those documents. I have also read the Family Report, prepared by Mr John de Laurence, a psychologist and a Regulation 8 Family Report Writer.
The father gave oral evidence and was cross-examined by Mr Davies of counsel, who appeared for the mother.
It is the father’s case that he believes the mother places excessive restrictions on the time he spends with the children and will not increase that time. He wishes to see the children from after school on Friday until the commencement of school on Monday in each alternate week and each Wednesday night from after school on Wednesday until the commencement of school on Thursday. He would like to progress to a 5 day block and, from there, to a week about with each parent.
He states that both the children have, at various times, asked to see him more. His relationship with Anna Little is a positive one and she helps him provide a loving atmosphere for the children when they are with him.
In cross-examination by Mr Davies, the father agreed that he did have a gambling problem but that it was a thing of the past. He also agreed that he had not complied with orders made in property proceedings between the parties and said that he had only arranged finance in July 2007. He agreed that he had been in a difficult financial situation but that he had re-negotiated his home loan.
The father denied that the Child Support payments to the mother were 7 weeks in arrears. He said that they had since been paid in advance.
The father conceded that he did not have a good relationship with the mother. He conceded that she did not trust him. He complained that the mother “tends to micro-manage” him.
He also said that he was merging his real estate business with others, which would “free up a lot of time”, which would allow him to spend more time with the children. He said that his mother assists him with the children, saying that she lived only “17 minutes drive away”.
The father denied saying that he would not take time off work to be with the children or that he would “rely on Anna” to look after the children.
In re-examination by Mr Priestley of counsel, the father said that his partner Anna did not speak to the writer of the Family Report because she was in Africa at the time the report was being prepared.
Anna Little’s evidence is that she is 31 years of age. She and the father commenced living together in April 2006. she deposed in her affidavit that she has a good relationship with the children. She described the father as being “very stressed” about not seeing the children daily and having been upset when he has returned the children to their mother after he has spent time with them.
In her affidavit Ms Little spoke highly of the mother’s parenting ability, saying:
Tania is a brilliant mother. She cares for the children and loves them greatly.[2]
[2] Affidavit of Anna Little filed 4 May 2007, paragraph 7
Notwithstanding Ms Little’s description of the mother as “a very good mother”[3], Ms Little expressed the opinion that the mother did not see the father as being important in the children’s lives. She deposed that the little boy B would sometimes telephone his father three times in one day, saying that this had only started since the children were no longer seeing their father on a daily basis.
[3] Affidavit of Anna Little, paragraph 8
In her oral evidence, Ms Little confirmed that she is pregnant and expecting a baby in April.
The mother’s evidence sets out her view that, contrary to his claims, the father had not taken various opportunities to see the children that she had offered. She even maintained a diary as to when the children spent time with him.[4] She was critical of the father for cancelling visits with the children on some 52 occasions, always “at the last minute”. The mother expressed the view that the children were becoming “distressed and anxious” and did not wish to leave her to spend time with the father.[5]
[4] Affidavit of Tania Louise Collins filed 8 May 2007, paragraph 9
[5] Affidavit of Tania Louise Collins, paragraph 14
The mother described how she went through a slow process of allowing the children to get to know her partner, Mr Matthews before commencing to live with him. She contrasted this with the father’s actions in commencing to live with Ms Little two weeks after he met her.[6]
[6] Affidavit of Tania Louise Collins, paragraphs 20 and 21
The mother has significant concerns about the children’s safety when they are in their father’s care. The mother referred to these matters in particular:
a)the father allowing the little girl S to ride a bicycle without wearing a helmet;
b)the father taking the children on an unregistered quad bike on a busy public road used by trucks with the child B on his lap and the child S on the tow bar with Ms Little;
c)the giving of appropriate medication to the child B when he had a temperature;
d)the fact that the father had not purchased an asthma puffer for the child B, who has a mild form of asthma;
e)the fact that the father purchased a motor bike for the child B, who still had training wheels on his push bike;
f)the child S not being required to wear a life jacket when travelling in a small boat; and
g)the children being allowed to ride in the front of the father’s car rather than the back seat.
The mother annexed the diary that she kept to her affidavit.
In cross-examination, the mother described the father as a “lax parent” and expressed the view that he had put the children in danger at times. She denied that she was obsessive but took the view that the children’s safety was paramount. She wished that the father would “take care of his responsibilities as a parent”.
The mother told the court that she wanted the children to be with her for 10 nights out of every 14. She felt it would put a stress on them to go to live with the father for 5 days a week; it would not benefit the children. She said that:
Going from mum’s to Dad’s to Mum’s to Dad’s is confusing. They need a steady home.
The mother described the Wednesday contact arrangement as “Daddy’s day” and said that she was the one who got the children “excited to go”.
The mother was firm in her view that a week about with each parent would not be healthy for the children, saying that it would not be in their best interests. She said:
There are safety concerns and Darryll does not have the time to care for them.
The mother’s mother, Lisa Collins, gave affidavit evidence about the children expressing to their mother a wish not to go with their father but the mother saying them that they would have “a great time with Daddy”.[7] Mrs Collins expressed a concern about gambling in the final paragraph of her affidavit:
I am concerned that the Applicant has been encouraging the children to gamble. I am aware that the Applicant has been seeking the children’s footy tips for a footy tipping competition that the Applicant has entered the children into.[8]
[7] Affidavit of Lisa Collins filed 8 May 2007, paragraph 4
[8] Affidavit of Lisa Collins, paragraph 7
The mother’s father, Andrew James Collins, gave evidence by affidavit, much of which of which was hearsay, either direct or veiled.
The final paragraph of Mr Collins’s affidavit contains his concern about his grandchildren being exposed to violence:
I am aware that on or about 18 April 2007 the Applicant’s shoulder was dislocated by his partner of which[9] incident occurred whilst wrestling in front of Anna Little’s godson. I understand that Ms Little has some formal training in martial arts. I am concerned that a level of violence is to be displayed in front of a child and may be displayed in front of my grandchildren.[10]
[9] sic
[10] Affidavit of Andrew James Collins filed 8 May 2007, paragraph 9
I have placed very little weight on the evidence of either of the mother’s parents. The two paragraphs quoted above serve to show that both of the maternal grandparents are prepared to place the worst possible connotations on trivial incidents and all their evidence establishes is that they are unable to view their former son in law in any objective way. It is regrettable that in a matter where the Court is required to decide on arrangements for the best interests of the children parties feel compelled to file affidavits that have no evidentiary value but contain minor mudslinging. Solicitors ought to advise their clients better.
The affidavit evidence of the mother’s partner, Ronald Matthews, was more useful. He supported the mother’s contention that the children would at times express reluctance to go to see their father and appear to be upset when collected by the father.
More particularly, Mr Matthews referred to an incident in March 2007 where the father collected the two children in a boat. Mr Matthews deposed that he heard the mother repeatedly ask the father to put life jackets on the children until one of the father’s friends did so.
In cross-examination, Mr Matthews conceded that he had telephoned Anna Little in May 2007 after he had read her affidavit and spoke critically to her about the contents of her affidavit. He said that he did not recall using any offensive language. He conceded that he had “had two beers” and that the phone call took place at 11:45pm.
Mr Matthews conceded that in November 2006 he had been convicted of driving with the prescribed content of alcohol in his bloodstream and had been disqualified from driving for a period of 6 months. He said that his blood alcohol reading was .075.
The Family Report
The Family Report Writer identified three issues in the Family Report:
a) The breakdown of trust that has occurred as a result of Mr Horner’s reputed gambling;
b) Indications that Ms Collins has a somewhat obsessive nature which may lead her to become over-involved with the children to the point of seeking to control what happens for them when they are not in her care;
c) There is a lack of clear rationale from Mr Horner as to how his proposal will substantially advantage the children.[11]
[11] Family Report paragraph 24
The Report shows the father to speak highly of the mother’s parenting capacity, describing her as “a good mother”. The father also described Mr Matthews as a sensible person whom the children liked.[12] He had “no qualms” about being in open communication with the mother. The Report Writer described the father’s parenting knowledge as “satisfactory” but made this criticism:
However, it is also apparent that he is not as aware of issues like safety as indicated by his approach to things like the children wearing helmets and life jackets…[13]
[12] Family Report, paragraph 31
[13] Family Report paragraph 37
The Family Report Writer described the mother as “very committed to her role as a parent”:
Her level of detail bordered on the obsessional, and she clearly wanted to impress upon the writer how seriously she took her role. It was obvious in her interactions with her children that she takes very good care of them, and her sense of self seems largely invested in her role as a good mother.[14]
[14] Family Report paragraph 40
The Report Writer interviewed Mr Matthews, who described the father as:
A good father but does silly things like putting the children on motor bikes without a helmet.[15]
[15] Family Report paragraph 49
The Report Writer described Mr Matthews in positive terms:
He is obviously an experienced parent and spoke authoritatively about his approach to discipline and overall parenting style, indicating that he is interested in promoting the “right environment” for children.[16]
[16] Family Report paragraph 50
Anna Little was not interviewed. The evidence is that she was away overseas at the time.
When dealing with the children, the Report Writer noted that the children said that “Wednesday is Daddy’s Day” and they said that they liked spending every second weekend with their father.[17]
[17] Family Report paragraph 55
The Report Writer noted that the children enjoyed positive, close relationships with each of their parents and with Mr Matthews. The Report refers to differences in parenting style, with the mother being mostly authoritative in her approach, leaning towards being somewhat authoritarian, while the father was assessed as being more laissez-faire in his approach.
The Report describes the mother as an “excellent” parent in terms of parenting skills and developmental awareness, whilst the father appeared to lack the depth apparent in the mother.
The Report Writer was of the view that the children were not too young to be involved in a shared care arrangement of the type proposed by the father, but stated that the issue was whether a change in the current arrangement to the degree proposed by the father would qualitatively improved the children’s lives. The Report Writer did not support the father’s proposal for shared care because there was no evidence that it would substantially improve the children’s lives to warrant that level of disruption to them. However, he did consider that the current arrangements could be “fine-tuned”.[18] He considered the pros and cons of an extension of weekend time from Sunday night to Monday morning.
[18] Family Report paragraph 68
The Report Writer suggested an option of introducing a Wednesday/Thursday combination “so that in the week following the weekend, the children spend Thursday overnight with their father, and in the week preceding their weekend they spend Wednesday evening with their father from after school until 7:30pm.”[19]
[19] Family Report paragraph 69
The Report Writer, Mr de Laurence, was cross-examined by Mr Priestley of counsel, for the father, and was not shaken in cross-examination. He maintained his view that the existing mix of time the children spend with each parent did not appear to be disruptive. He also maintained his view that the mother was the more thoughtful parent.
Mr de Laurence referred in his evidence, as he had in the Family Report, to the mother’s lack of trust in the father, based on his past behaviour. He said that there was a significant difference in the parents’ awareness of the needs of the children. He asked, rhetorically perhaps, how the proposed change in arrangements would benefit the children when their needs were being met by the existing arrangement. There was, he said, no evidence that this would be so.
Mr de Laurence emphasised that he was not saying that the father was a bad parent. The issue was whether changing the arrangements for the children so dramatically would improve the situation for the children, and he did not believe it to be so.
Submissions
Counsel for the mother, Mr Davies submitted that the Court orders made in 2005 about the children were still in existence, and that the interim orders made on 10th May 2007 did not discharge those earlier orders. He referred the court to s.61DA(4) of the Family Law Act, which provides that the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for that presumption to apply.
Mr Davies submitted that it was incumbent on the father, who is the Applicant, to demonstrate that there had been a significant change in circumstances such as to warrant varying the earlier orders. He submitted that the mother’s proposal would give the father more time with the children than he was currently getting. The mother had also had it brought to her attention that she had been “nitpicking” and has stopped keeping the diary that she was keeping. He referred the Court to the fact that the Family Report Writer did not see any advantage to the children in the changes proposed by the father.
Counsel for the father, Mr Priestley, submitted to the Court that the submissions by the mother’s counsel along the lines of the decision in Rice & Asplund[20] was irrelevant, as the mother had raised different orders in her response.
[20] (1979) FLC 90-725
Mr Priestley submitted that there were significant reasons for a change in the orders, as the father’s working arrangements were now more flexible than they had been when the original orders were made in 2005. He referred the court to the provisions of s.65DAA of the Act, which requires the court to consider whether a child spending equal time with each of the parents is in the best interests of the child and reasonably practicable (s.65DAA(1)), or whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable (s.65DAA(2)).
Mr Priestley submitted that there was nothing that demonstrated the advantages of the mother’s proposal over that of the father. Since the orders were made, he submitted, there had been no trouble complying with them.
As to the matters required to be considered under s.60CC of the Act, Mr Priestley submitted there were no factors adverse to the father’s proposal. The children like going to the father’s home on alternate weekends and call Wednesday “Daddy’s Day”.
Conclusions
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.[21] The primary considerations in determining what is in a child’s best interests 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.[22]
[21] Family Law Act 1975 (Cth) s 60CA
[22] Family Law Act s 60CC(2)
There are a number of secondary considerations set out in s.60CC(3) of the Act. There are a number of relevant considerations which I have borne in mind:
·Views expressed by the children and their maturity and level of understanding (s.60CC(3)(a));
·The nature of the children’s relationship with each parent and other persons (s.60CC(3)(b));
·The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent (s.60CC(3)(c));
·The likely effect of any changes in the children’s circumstances (s.60CC(3)(d));
·The practical difficulty and expense of the children spending time with and communicating with each parent (s.60CC(3)(e));
·The attitude to the children and the responsibilities of parenthood demonstrated by each parent (s.60CC(3)(i)).
The other factors are of considerably less significance, and some are not relevant.
In this case, I agree with the submission by Mr Priestley of counsel, for the father, that it is hardly appropriate for the mother to bring a Rice v Asplund argument after three days of evidence and submissions about alternative proposals for parenting orders. It has always been the mother’s case that the court should make parenting orders in accordance in with the detailed set of orders made in her Amended Response. The decision in Rice v Asplund does not apply.
This does not mean, however, that the Court will see that the father’s proposals for a significant change to the time that the children spend with each parent will succeed.
In my view, it was appropriate for the Court to consider what parenting orders are in the children’s best interests. There have been changes in circumstances. The parties are divorced and have formed new live-in relationships. The father’s working arrangements have changed. The parties differing approaches to parenting have led to clashes between them.
The Court must be guided by the need to make orders that are in the children’s best interests, whether or not those orders meet the parents’ wishes. It has never been the case that the Court, in declining to adopt the proposal of one party must necessarily adopt the proposal of the other.
The Court has been greatly assisted by the Family Report, including the oral evidence of the Report Writer. Whilst the Court is not bound by the Report, I have found the Family Report’s observations and recommendations to be highly persuasive, especially when viewed in the light of the evidence of the parties, their partners, and the mother’s parents.
I am satisfied that it is in the children’s best interests to have a meaningful relationship with both parents. They clearly love their children, and the children love them.
I am satisfied that the mother’s partner, Mr Matthews, is an appropriate person to spend time with the children. There is evidence that he relates well to the children and is an experienced parent himself. I do not see any evidence that would suggest that he would hinder the father’s relationship with the children. It would be appropriate for him, however, to refrain from the temptation to make late night telephone calls, especially after he has consumed alcohol.
I am also satisfied that the father’s partner, Ms Little, is an appropriate person to spend time with the children. She is to become a mother herself later this year. The mother has been rather critical of Ms Little in her affidavit material, and it would do the mother well to remember that Ms Little described her in her affidavit as a “brilliant mother” who “cares for the children and loves them greatly”. I am aware that
Ms Little was not interviewed for the Family Report, but this was because she was overseas at the time. I had the opportunity to observe Ms Little give oral evidence and I formed a positive view of her as a person. I have already expressed a view about the evidence of the maternal grandfather, Mr Andrew Collins, where he made sanctimonious comments expressing his concern about the possibility of a “level of violence” being demonstrated in front of his grandchildren. He stuck to this line even after some sceptical questions from the Bench. I found his evidence on that subject unhelpful and silly.
Similarly, the maternal grandmother’s expressed concern of the children being encouraged to gamble by entering a football tipping competition was also unhelpful. There are important issues to be decided in this case; participation in a “footy tipping” competition is not one of them.
There is a clash between the parents because of their different parenting styles. The mother is clearly a very conscientious mother, if a little obsessive. That said, it is better to err on the side of caution where children’s safety is concerned. Children should wear life jackets when travelling in small boats. Children should wear helmets when riding bicycles – so should adults. Children have been killed on motorcycles and quad bikes – so have adults. If it is the case that the father is driving an unregistered quad bike, which is a motor vehicle, on a public road, then he should stop doing so.
The father may well complain that the mother tends to “micro manage” him in his care of the children, but where there is evidence to show that he has adopted an overly casual approach to the children’s safety, it is hardly surprising that that the mother has concerns about his parenting skills.
I propose to make orders requiring the parents to take appropriate steps to safeguard the children’s safety when the children are on bicycles, motorbikes or boats.
The Family Report makes it clear that the children have a positive view of the father and like spending time with him. They regard Wednesday as “Daddy’s Day” and that seems to be significant in their lives. It should continue.
The parents do take steps to encourage the children’s relationship with the other parent. I am satisfied that the mother’s actions in opposing the father’s proposal stem more from her mistrust of him in his ability to look after the children than in any real desire to cut the father out of the children’s lives.
I accept the view expressed in the Family Report and in
Mr de Laurence’s evidence that any major change to the amount of time that the children spend with each parent would not bring about any significant improvement in their lives. It appears to me that the current arrangements, and those proposed by the Family Report, meet the definition of “substantial and significant time” as set out in section 65DAA(3) of the Act. That subsection provides that a child will be taken to spend substantial and significant time with a parent only if:
a) the time the child spends with the parent includes both:
i) days that fall on weekends and holidays; and
ii) days that do not fall on weekends and holidays; and
b) the time the child spends with the parent allows the child to be involved in:
i) the child’s daily routine; and
ii) occasions and events that are of particular significance to the child; and
c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
This definition means that “Daddy’s Day” on a Wednesday is an important day, as it falls within the definition in s.65DAA(3)(a)(ii). Birthdays, Fathers’ Day and Mothers’ Day are also significant, both to children and parents. It is within the experience of many parents in Australia that children wish to have contact with their mothers and fathers on their respective days, and that wish continues log after the children have become adults.
I intend to make orders that will allow the children to spend substantial and significant time with their father.
There are few, if any practical difficulties in the children spending time with each parent. They live in the same general area and the father has adjusted his working hours to be more flexible. He should be in a better position than before to spend time with his children, including attending sporting functions and school functions.
There is a difference of opinion between the parents as to their respective attitudes to the responsibilities of parenthood. The father thinks that the mother is obsessive and tends to “micro manage” and the mother thinks that the father is too casual about the children’s health and safety.
If the father were to demonstrate a more cautious view about safeguarding the children from injury, he may well find that the mother may “lighten up” in her attitude. He needs to earn her trust, and there can be no better way in taking responsible steps to safeguard the children’s health and welfare.
I am satisfied that I should follow the recommendations in the Family Report by “fine-tuning” the current arrangements. I am of the view that the mother’s proposals, as set out in her Amended Response, are overly-complicated and difficult to follow. I note, too, that the mother in her Amended Response does not make any proposal for the children to spend time with their father, other than at Christmas and Easter. I do not see why the children should not spend part of the other school holidays with their father.
The mother in her Amended Response suggests an Order 5 which begins by indicating a time as “Until the children are old enough to have internalised the arrangement…” There is no evidence before the court as to what that age might be and it is difficult to see how a court being asked to enforce the order would make such a finding without requiring the children to undergo a psychological examination.
I am unwilling to make an order requiring parents “to make a genuine effort” as I am not satisfied that it such an order would be capable of being enforced. Parenting orders should combine precision with clarity.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 31 January 2008
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