Jackman and Jackman

[2008] FamCA 349

FAMILY COURT OF AUSTRALIA

JACKMAN & JACKMAN [2008] FamCA 349

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Ms Jackman

RESPONDENT: Mr Jackman

FILE NUMBER: PAC 754 of 2008

DATE DELIVERED: 30 April 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 18, 21 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kenny

SOLICITOR FOR THE RESPONDENT: Rachel Stubbs & Associates

Orders

I make the following orders:

1. That all existing orders in relation to the children

   L born … October 1998, and

   C born … March 2000

   (‘the children’) be discharged.

2. That the children live with the father, during school term time, for 6 nights and days per fortnight being from the conclusion of school on Friday in Week 1 until the commencement of school on the following Thursday.

3. That the children otherwise live with the mother during school term time.

4. That the children live with each parent for one half of all school holidays, as agreed or being the second half with the father in default of agreement.

5. That each party is permitted to speak with the children by telephone once per day between 6:00pm and 7:00pm, while they are in the care of the other parent.

6. That it is noted that the father does not intend to remove the children’s residence from the W district.

7. 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.

8. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 754 of 2008

MS JACKMAN

Applicant

And

MR JACKMAN

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. These proceedings are the competing applications of the mother and the father for interim parenting orders in relation to their children:

   L born in October 1998 (9) and C born in Mach 2000 (8). 

2. The matter came before me by way of an Appeal against a decision of the Local Court made on 22 January 2008.  the proceedings are thus a hearing de novo. 

Background

1. The father, who is 42, and the wife who is 34, began to live together in December 1993 and married in January 1994.  They separated on either 20 September 1997 or 16 October 1997, according to the mother and father respectively. 

2. The mother commenced these proceedings in the Local Court on 4 December 2007.  On 18 December 2007 interim orders were made which provided for a week about arrangement, apparently pending an interim hearing on 22 January 2008. On that date the Local Court ordered that the children live with the father from 5.00pm on Friday until 5.00pm on Sunday and from 5.00pm until 8.00pm on Wednesday in each alternate week and from 5.00pm on Tuesday until 5.00pm on Thursday each other week. 

3. The behaviour of each of the parties around the time of separation does them little credit.  They argued in front of the children, who must have been very distressed and upset. To compound the children’s difficulties, their grandparents involved themselves in the various fracas between the parties.

4. In mid January 2008 the mother moved into rented accommodation at T.  The father has continued to live in the former matrimonial home at E.  The parties’ homes are in close proximity to each other.

The Competing Proposals

1. The father’s primary application was for a week about equal time regime.  If he is unsuccessful in that application, he sought that the children live with him from after school on Friday until the following Thursday morning in each fortnight and for half of all school holidays.

2. Initially, the mother’s primary application was for a continuation of the orders made by the Local Court on 22 January 2008.  If she is unsuccessful in that application she sought that the children live with their father each alternate weekend from 5.00pm on Friday until the commencement of school on Tuesday and for half of all school holidays.  By the end of the hearing her primary application was for orders that the child live with the father from 5.00pm Friday until Tuesday morning in each alternate week and for half of all school holidays. 

Agreed Or Uncontested Facts

1. The parties agree about very little.  They each filed large affidavits containing numerous criticisms of and complaints about the other parent.

Issues At The Interim Hearing

1. There were numerous factual disputes between the parties.  They each attempted to sheet home to the other blame for the unseemly incidents between them.  I cannot resolve these issues in the context of an interim hearing and I make no attempt to do so.

2. Ultimately, the issue for me to determine is how many nights per fortnight the children should spend with each parent.  The difference in the two proposals is three nights per fortnight.

Relevant Section 60cc 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;

1. There was no independent evidence as to the children’s views.  Not surprisingly, each party claimed that the children have expressed views which support their position.

2. The father maintained that the children have told him that they want to return to a week about arrangement and that they have said that they would like more time with him.  The mother maintained that the boys have said things to her which indicate that they were unhappy with the week about arrangement.  It should be noted that the mother claimed that the children made these remarks to her before they left for the first week with their father.  Their views may well be different now. 

3. These children have been subjected to a high level of parental conflict and seem to be well aware of the Court proceedings.  For these reasons I place little weight on the views said to be expressed by them to each of the parties.  The evidence offers me no reason to assume that they feel free to state their true views to either parent or any of their grandparents.

   Section 60CC(3)(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);

4. Nothing in the evidence persuades me that the children have other than a close, loving relationship with each of their parents.  The mother claimed an advantage in that she has been the primary carer during the marriage.  However, she was content to leave the children in the care of their father while she did shift work as a nurse in the evenings and on weekends.  In my assessment neither party has a relationship with the children which is qualitatively superior to that of the other.

   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;

5. The parties seem to be willing to comply with orders of the Court.  To that extent, they are each willing and able to facilitate the children’s relationship with the other parent.  I can only hope that they can soon manage to go beyond what is required by Court orders and focus on their children’s best interests, rather than gaining an advantage over the other party. 

   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;

6. The primary proposal of each of the parties involved only two days each fortnight on which there would be changeovers.  Both of the father’s proposals involve changeovers at the children’s school, which is probably to their advantage at this stage. 

7. The parties gave conflicting reports as to the impact on the children of the week about arrangement during January 2008.  The available evidence gives me no reason to prefer the account of either party.  Logically, it can be assumed that the mother would be looking for signs that the arrangement did not work for the children and the father would be seeking out indications to the contrary.

8. The mother is employed as a nurse.  She works four days per fortnight from 7.00am until 3.00pm.

9. The father is employed by the public service.  His evidence was that his work hours are from 9.00am until 4.30pm five days per week and one weekend per month, for which he has two rostered days off during the following week.  He also has the opportunity to take two days flexi time each month and he has six weeks leave per year.

10. It may well have been the case that the father worked longer hours prior to the separation. It would not be surprising if he now adjusts his work commitments to allow him greater opportunity to care for the children.

11. It is true that, historically, the children have spent more time in the care of their mother than their father.  It thus may have been that they experienced some difficulties in being away from her for an entire week.

The Presumption Of Equal Shared Parental Responsibility

1. Neither party contended that this presumption does not apply or has been rebutted.  Nothing in the evidence persuades me that equal shared parental responsibility is contrary to the children’s best interests.  It is thus mandatory that I consider whether it is in the children’s best interests, and reasonably practicable, for them to spend equal time or substantial and significant time, with each of their parents.

Equal Time Or Substantial Or Significant Time

1. There are two matters which cause me concern that an equal time arrangement may not be in the children’s best interests.  Firstly, they are accustomed to spending more time in the care of their mother than is the case with their father.  Secondly, the mother seems to be more available than is the father, in terms of work commitments. 

2. I have not blindly accepted the evidence of the mother, to the effect that a week-about arrangement created problems for the children.  I have had regard to the historical arrangements for their care, which leave me with doubts that they could make a seamless move to equal time with each parent. 

3. In terms of availability, I do not suggest that the father would do anything other than make entirely appropriate arrangements for the care of the children while he is at work.  In fact, the same can be said of the mother.

4. My concern is to ensure that a sense of security is restored to the children, after what they have been subjected to by their parents and grandparents.  It seems to me that they need an arrangement which gives them both stability and a lot of quality time with each of their parents.

5. It seems to me that the father’s alternative proposal will best fulfil the children’s needs.  They will have the advantage of real, extensive and meaningful involvement of each of their parents in all aspects of their lives but more time with their mother, who has historically provided more of their care.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              30 April 2008