Karllsson and Karllsson
[2013] FamCA 474
FAMILY COURT OF AUSTRALIA
| KARLLSSON & KARLLSSON | [2013] FamCA 474 |
| FAMILY LAW – CHILDREN – interim orders – with whom children live – where the parties advance separate proposals for the living arrangements of the children – best interests – consideration of family report – orders made for the living arrangements of the children pending final determination. |
| Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 64B, 65DAA Family Law Rules 2004 (Cth) r 15.65 |
| Cilento & Cilento (1980) 6 Fam LR 35 Cowling & Cowling (1985) 22 Fam LR 776 Goode & Goode (2006) 36 Fam LR 422 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Karllsson |
| RESPONDENT: | Mr Karllsson |
| FILE NUMBER: | ADC | 43 | of | 2013 |
| DATE DELIVERED: | 21 June 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 6 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Berman, SC |
| SOLICITOR FOR THE APPLICANT: | Norman Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes, SC |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners Lawyers |
Orders
Pending the determination of the final orders application:
The parties have equal shared parental responsibility for the children B born on … January 2007 and C born on … August 2010 (“the children”).
The children live with the father as follows:
2.1In relation to the child B:
(a)during school term times:
(a)each alternate weekend commencing Friday 2 August 2013 and resuming on the first Friday in each term thereafter from the conclusion of school on each alternate Friday until 6.00 pm Sunday;
(b)each alternate Wednesday commencing Wednesday 7 August 2013 from the conclusion of school until the commencement of school the next day;
(b)during school holidays commencing Saturday 29 June 2013:
(i) in week one from 8.00 am on Tuesday 2 July to 6.00 pm on Wednesday 3 July 2013;
(ii) from 8.00 am on Saturday 6 July to 11.30 am on Monday 8 July 2013;
(iii) in week three from 8.00 am on Saturday 20 July to the commencement of school on Monday 22 July 2013;
(c)during school holidays commencing Saturday 28 September 2013:
(i) for one week commencing on Saturday 28 September 2013 from 9.00 am and concluding at 9.00 am on Saturday 5 October 2013;
(d)during December 2013/January 2014 school holidays:
(i) for the first week of the school holidays commencing on Saturday 14 December 2013 from 9.00 am and concluding on Saturday 21 December 2013 at 9.00 am;
(ii) for a further week commencing on Monday 6 January 2014 from 9.00 am and concluding on Monday 13 January 2014 at 9.00 am;
(e)thereafter, during school holidays for one half of the school holidays (being calculated from the day upon which school concludes to the day upon which school recommences) at times and dates to be agreed between the parties in writing and in default of agreement for the first half commencing at 9.00 am on the first Saturday after conclusion of school and concluding at 9.00 am on the middle day of the school holidays;
2.2In relation to the child C:
(a)during school terms until the commencement of term four on 14 October 2013:
(i) on the same alternate weekends in which B is living with the father from 8.00 am Saturday until 2.00 pm Sunday;
(ii) on the same alternate Wednesdays that B is living with the father from 8.00 am on the Wednesday until 5.00 pm the following day;
(b)thereafter, for term four from Monday 14 October 2013:
(i) commencing on first Friday in the school term coinciding with the weekends in which B is living with the father from 6.00 pm Friday until 10.00 am Sunday;
(ii) on the Wednesdays that B is living with the father from 9.00 am until 6.00 pm and each alternate Wednesday thereafter;
(c)during school holidays commencing Saturday 29 June 2013:
(i) at the same times that the child B is living with the father SAVE AND EXCEPT that on Monday 22 July 2013 the child C is returned to the care of the mother at 11.30 am;
(d)during school holidays commencing Saturday 28 September 2013:
(i) on Saturday 28 September 2013 from 9.00 am to 11.30 am on Monday 30 September 2013;
(ii)on Wednesday 2 October 2013 from 9.00 am until 6.00 pm;
(iii) on Friday 4 October 2013 from 8.00 am to Saturday 5 October at 9.00 am;
(e)thereafter, during all school holidays at the same time as the child B is living with the father;
(f)from the commencement of school terms in 2014 the child C shall live with the father at the same time as the child B lives with the father;
Notwithstanding the aforementioned orders, the children B and C live with the father:
(a)from the conclusion of school on Wednesday 26 June 2013 until 8.00 pm;
(b)for Father’s Day from 6.00 pm on the Saturday preceding Father’s Day until the commencement of school or 9.00 am on the following Monday;
(c)for Christmas 2013 from 11.00 am Christmas Day until 11.00 am Boxing Day.
The children live with the mother at all other times SAVE AND EXCEPT as provided for in these orders.
The children’s time with the father shall be suspended to ensure that the children live with the mother:
(a)for Christmas 2013 from 11.00 am Christmas Eve until 11.00 am Christmas Day;
(b)on the mother’s Birthday:
(i)if on a school day from the conclusion of school / nursery until 8.00 pm;
(ii)if on a non-school day from 9.00 am until 8.00 pm.
(c)from 11.00 am on Sunday 4 August 2013 in lieu of living with the mother on C’s birthday on … August 2013;
(d)on B’s birthday from 1.00 pm until 6.00 pm.
The children live with the father at such further or other times as may be agreed between the parties in writing from time to time.
In the event that changeover does not take place at school or nursery school or kindergarten, the father to collect the children from the mother’s residence at the commencement of the time with the children and the mother collect the children from the father’s residence at the conclusion of the father’s time with the children unless otherwise agreed in writing between the parties.
Each party facilitate and promote reasonable telephone communication between the children and the other party when the children are in his or her care.
All Applications in a Case are dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Karllsson & Karllsson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 43 of 2013
| Ms Karllson |
Applicant
And
| Mr Karllson |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns parenting orders sought on an interim basis by Ms Karllson (“the mother”) and Mr Karllson (“the father”).
The interim orders sought concern the children of the parties, namely, B (born in January 2007, now aged 6) and C (born in August 2010, now aged 2) (collectively referred to hereafter as “the children”).
Background
The father was born in 1963 and is now 49. The mother was born in 1967 and is now 46. The parties commenced cohabitation in September 2000. The parties were married in August 2006. The child B was born in January 2007 and C was born in August 2010.
The parties separated on 7 September 2010 when the father left the former matrimonial home and moved into residential accommodation located nearby.
The mother commenced these proceedings by filing an Initiating Application in this Court on 4 January 2013.
The parties are yet to divorce.
The interim orders sought by the parties
The following parenting orders are sought by the mother as contained in the mother’s amended Initiating Application filed on 6 May 2013:
Children
...
3.That until further order the children of the parties’ marriage namely [B] born … January 2007 (age 6 years) (“[B]”) and [C] born … August 2010 (age 2 years) (“[C]”) live with the mother.
4.The parties do all such things as may be reasonable required to enable a Family Assessment Report to be carried out with respect to parenting arrangements for [B] and [C] such assessment to be carried out by Mr [D] and directed to the matters set out in section 60CC, 61DA and 65DAA of the Family Law Act 1975 with the costs of such assessment and report to be borne by the father.
5. The parties do all such things necessary to facilitate the completion of the Family Assessment Report including making themselves available for appointments with the report writer and executing any authorities for the release of information to the report writer.
6. For the purpose of preparation of the Family Assessment Report, the report writer be at liberty to liaise with any person in relation to the welfare of the children.
7.That the children [B] and [C] spend time with the father during the school holidays from 8 December 2012 to 30 January 2013 as is agreed between the parties.
8.That until further order the child [B] spend time with the father as follows: [the rest of this order is struck through]
9.That until further order the child [B] spend time with the father as follows:
During the second school term from Monday 29 April 2013 to Friday 28 June 2013:
a. In Week One:
i. On Monday from 8.00am until the commencement of school for the purpose of taking [B] to school.
ii. Overnight on Friday from the conclusion of school until 6.00pm on Saturday.
b. In Week Two:
i. From the conclusion of school to 6.00pm on Wednesday
ii. Overnight from 8.00am on Saturday until 2.00pm on Sunday.
During the third school term from Monday 22 July 2013 to Friday 27 September 2013:
a. In Week One:
i. Overnight from 4.00pm on Sunday to 6.15pm on Monday.
ii. Overnight for 2 nights from 5.00pm on Friday until 4.00pm on Sunday.
b. In Week Two:
i. On Wednesday from the conclusion of school until 6.00pm
ii. Overnight from 4.00pm on Sunday until 6.15pm on Monday.
During the fourth school term from Monday 14 October to Wednesday 11 December 2013:
a. In Week One:
i. Overnight from 8.00am on Sunday to conclusion of Greek school at 6.15pm on Monday;
ii. Overnight for 2 nights from 6.00pm on Friday until 10.00am on Sunday.
b. In Week Two:
i. On Wednesday from the conclusion of school until 6.00pm
ii. Overnight from 8.00am on Sunday until 6.15pmon Monday.c. Such further or other times as may be agreed between the parties from time to time.
10.That until further order the child [C] spend time with the father as follows:
During the second school term from Monday 29 April 2013 to Friday 28 June 2013:
a. In Week One:
i. On Monday from 8.00am until 11.30am.
ii. Overnight on Friday from 2.00pm until 6.00pm on Saturday
b. In Week Two:
i. From 11.00am to 6.00pm on Wednesday
ii. Overnight from 8.00am on Saturday until 2.00pm on Sunday.
During the third school term from Monday 22 July 2013 to Friday 27 September 2013:
a. In Week One:
i. Overnight from 4.00pm on Sunday to 6.15pm on Monday.
ii. Overnight for two nights from 5.00pm on Friday until 4.00pm on Sunday.
b. In Week Two:
i. On Wednesday from 11.00 until 6.00pm
ii. Overnight from 4.00pm on Sunday until 6.15pm on Monday.
During the fourth school term from Monday 14 October to Wednesday 11 December 2013:
a. In Week One:
i. Overnight from 8.00am on Sunday to conclusion of Greek school at 6.15pm on Monday
ii. Overnight for two nights on Friday from 6.00pm until 10.00am on Sunday
b. In Week Two:
i. On Wednesday from midday until 6.00pm
ii. Overnight from 8.00am on Sunday until 6.15pmon Monday.c. Such other time as the parties may agree.
11. Special Events
That the arrangements specified for the children during school term time shall be suspended where necessary to ensure that:
a. The children are returned to the mother at 2.00pm on Mothers Day, Sunday 12 May 2013 to allow the children to spend time with the paternal Grandmother in the morning.
b. The children remain with the mother on Monday 10 June 2013 being the Queen’s Birthday Public Holiday.
c. The children spend time with the father on his birthday on … June 2013 from the conclusion of school to 8.00pm.
d. That the children spend time with the mother from 11.00am on Sunday 4 August 2013 in lieu of spending time with the mother on [C’s] birthday … August 2013.
e. That the children spend time with the father on … September 2013 from 4.30pm until 8.30pm for [Ms E’s] birthday.
f.That the children remain with the mother on Thursday 31 October 2013 being Halloween.
g. That the children spend time with the father from 8.00am to 4.00pm for [Festival F], … November 2013.
h.That the children spend time with the father from 5.00pm on … November until 5.00pm on [the following day] for [Ms G’s] birthday.
12. School Holidays
a. School Holidays at conclusion of Term 2 from 29 June to 22 July 2013
i. That the children spend time with the father as follows:
ii. In Week One:
iii. From 8.00am on Tuesday 2 July to 6.00pm on Wednesday 3 July
iv. From 8.00am on Saturday 6 July to 11.30 on Monday 8 July
v. In Week Three:
vi. From 8.00am on Saturday 20 July to commencement of school on Monday 22 July for [B] and 11.30am for [C].
vii.That the children spend all such other time during the Term 2 school holidays with the mother who shall be at liberty to take the children on a holiday interstate or overseas.
b. School Holidays at conclusion of Term 3 from Saturday 28 September to Sunday 13 October 2013
i. That the children spend time with the father as follows:
ii. In Week One:
iii. From 4.00pm on Sunday 29 September to 4.00pm on Tuesday 1 October.
iv. In Week Two:
v. From 8.00am on Saturday 5 October to 4.00pm on Monday 7 October.
vi. From 4.00pm on Sunday 13 October to conclusion of Greek school on Monday 14 July at 6.15pm.
At the hearing, Mr Berman, SC for the mother asked that I delete Order 9(b)(ii) (concerning B) and 10(b)(ii) (concerning C) under the heading of “During the fourth school term from Monday 14 October 2013 to Wednesday 11 December 2013” as this provision was said to be included in error. Those two orders are struck out in the list of orders quoted above.
The following parenting orders are contained in the father’s outline of case filed on 3 May 2013:
“Interim children’s matters
1. That the parties have equal shared parental responsibility for the children [B] born on … January 2007 (“[B]”) and [C] born on … August 2010 (“[C]”) (“the children”).
2. The children live with the father as follows:
2.1 During term 2 in 2013, in each fortnightly cycle as follows:
2.1.1 With respect to [B]:
(a) From 9:00 am on Sunday until the commencement of school or 9:00 am on Wednesday in the first week; and
(b) From 9:00 am or the commencement of school on Wednesday until 9:00 am on Sunday in the second week;
2.1.2 With respect to [C]:
(a) From 9:00 am on Sunday until the commencement of nursery or 9:00 am on Tuesday in the first week; and
(b) From 9:00 am or the commencement of nursery on Thursday until 9:00 am on Sunday in the second week;
2.2 From the commencement of term 3 in 2013, in each fortnightly cycle as follows:
2.2.1 From 9:00 am on Sunday until the commencement of school/nursery or 9:00 am on Wednesday in the first week; and
2.2.2 From 9:00 am or the commencement of school/nursery on Wednesday until 9:00 am on Sunday in the second week;
2.3 For one half of [B’s] school holidays (the school holiday being the day upon which school concludes until the day upon which school re-commences) at times and dates as may be agreed upon in writing between the parties but in default of agreement, the first half;
2.4 During Greek Easter from 6:00 pm on Friday until 6:00 pm on Sunday save that, in the event Greek Easter falls on the same weekend as Easter:
2.4.1 From 6:00 pm on Friday until 12:00 pm on Saturday; and
2.4.2 From 12:00 pm until 6:00 pm on Sunday;
2.5 During Easter in the event Easter does not fall on the same weekend as Greek Easter, from 6:00 pm on Sunday until 9:00 am or the commencement of school on Tuesday;
2.6 For Christmas, from 10:00 am on Christmas Day until 12:00 pm on Boxing Day;
2.7 On the father’s birthday as follows:
2.7.1 If on a school day, from the conclusion of school/nursery until 6:00 pm;
2.7.2 If on a non-school day, from 9:00 am until 6:00 pm;
2.8 On Father’s Day, from 6:00 pm on Saturday until the commencement of school/nursery or 9:00 am on Monday; and
2.9 Such further or other time as may be agreed upon in writing between the parties.
3. The children live with the mother at all other times, save as otherwise provided for in these orders.
4. The father’s time with the children be suspended so that the children spend time with the mother:
4.1 For one half of [B’s] school holidays (the school holiday being the day upon which school concludes until the day upon which school re-commences) at times and dates as may be agreed upon in writing between the parties but in default of agreement, the second half;
4.2 For Christmas, from 12:00 pm on Christmas Eve until 10:00 am on Christmas Day;
4.3 On the mother’s birthday as follows:
4.3.1 If on a school day, from the conclusion of school/nursery until 6:00 pm;
4.3.2 If on a non-school day, from 9:00 am until 6:00 pm;
4.4 On Mother’s Day, from 6:00 pm on Saturday until the commencement of school/nursery or 9:00 am on Monday;
4.5 During Easter from 3:30 pm or the conclusion of school/nursery on Thursday until 6:00 pm on Sunday save that, in the event Easter falls on the same weekend as Greek Easter:
4.5.1 From 9:00 am until 6:00 pm on Friday;
4.5.2 From 6:00 pm on Saturday until 12:00 pm on Sunday; and
4.5.3 From 12:00 pm on Monday until 9:00 am or the commencement of school/nursery on Tuesday; and
4.6 At any other time as may be agreed upon in writing between the parties.
5. That the children spend time with the non-resident parent on their birthdays and name days, as follows:
5.1 If on a school day, from the conclusion of school/nursery until 5:00 pm;
5.2 If on a non-school day, from 12:00 Noon until 6:00 pm.
6. That each party facilitate reasonable telephone communication between the children and the other party when the children are in his or her care.
7. In the event changeover does not take place at school, or nursery school or kindergarten, the father collect the children from the mother’s residence at the commencement of his time with the children and the mother collect the children from the father’s residence at the conclusion of the father’s time with the children, unless otherwise agreed upon in writing between the parties.
8. That the mother forthwith do all such acts and things and sign all such documents as may be necessary to facilitate [C’s] enrolment in and attendance at [H] Early Learning Centre from 9:00 am until 11:30 am each week day.
9. That the mother be and is hereby restrained from causing, permitting or allowing [C] to sleep in the same bed with any other adult male save for the father.
10. That the mother’s Initiating Application for interim orders filed on 4 January 2013 be otherwise dismissed.
11. Pursuant to section 65DA(2) and section 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 the 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.”
Paragraphs 2.1 and 2.2 of the earlier interim parenting orders advanced by the father in his amended Response to the mother’s application filed on 2 May 2013 were referred to by the father’s counsel Mr Geddes, SC at the hearing. These orders provide:
2. That the children live with the father as follows:
2.1 During school term, in each fortnightly cycle as follows:
2.1.1 From 9.00am on Sunday until the commencement of school or 9.00am on Wednesday in the first week;
2.1.2 From 9.00am or the commencement of school on Wednesday until 9.00am on Sunday in the second week;
2.2 For one half of the children’s school holidays (the school holidays being the day upon which school concludes until the day upon which school recommences at times and dates as may be agreed upon between the parties but in default of agreement, the first half.
The Law
Part VII of the Family Law Act 1975 (Cth) provides a framework for making parenting orders on both an interim and final basis. The most relevant sections are:
Section 60CA
Child's best interests paramount consideration in making a parenting order
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.
Section 60CC
How a court determines what is in a child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
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 extent to which each of the child’s parents 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;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
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 person 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)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The 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:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)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.
Specifically, the power to make interim orders is provided by s 64B(1)(a) which empowers me to make a parenting order “until further order.”
The Full Court of the Family Court of Australia (Bryant CJ, Finn and Boland JJ) in Goode v Goode (2006) 36 Fam LR 422 at 445 (“Goode”) commented on the legislative framework that must be followed when considering interim parenting orders:
In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.
However, the legislative pathway must be followed.
In an interim case that would involve the following:
i)identifying the competing proposals of the parties;
ii)identifying the issues in dispute in the interim hearing;
iii)identifying any agreed or uncontested relevant facts;
iv)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
v)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
vi)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
vii)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
viii)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
ix)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
x)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
xi)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
At page 442 of the Goode judgment, Bryant CJ, Finn and Boland JJ stated:
... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to the separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
Elsewhere in the Goode judgment, the Full Court overturned the principle (as established by the Full Court in decisions such as Cilento & Cilento (1980) 6 Fam LR 35 and Cowling & Cowling (1998) 22 Fam LR 776) at page 443 as follows:
The reasoning in Cowling … to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
As the interim orders sought by both of the parties concern the living arrangements of the children, the comments of the High Court of Australia (composed of French CJ, Gummow, Hayne, Kiefel and Bell JJ) in MRR v GR (2010) 240 CLR 461 at 466 on s 65DAA of the Act are relevant:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The Report of Mr D
Mr D is a clinical psychologist in private practice.
He was engaged by the parties as a single expert to prepare a Family Report with respect to the children via a joint letter of instructions signed by the solicitors for each party and dated 13 December 2012.
Mr D travelled to Adelaide on 7 February 2013 to enable him to prepare the report. The report (hereafter referred to as “the D report”) was completed on 26 February 2013.
The father’s solicitors submitted questions to Mr D pursuant to r 15.65 of the Family Law Rules 2004 (Cth) on 19 March 2013. The mother’s solicitors submitted the same on 20 March 2013.
Mr D responded to these questions via letter to the parties’ solicitors on 28 March 2013.
Submissions of the parties
Submissions of the mother
The mother filed an outline of case on 5 May 2013. Counsel states that the following documents were relied on at the hearing:
a)Amended Initiating Application of the mother filed on 6 May 2013
b)Affidavit of the mother affirmed on 3 January 2013 and filed on 4 January 2013.
c)Financial statement of the mother sworn on 3 January 2013 and filed on 4 January 2013.
d)Affidavit of the mother’s solicitor sworn and filed on 5 March 2013
e)Affidavit of the mother sworn and filed on 5 March 2013.
f)Affidavit of the mother sworn on 4 May 2013 and filed on 6 May 2013.
Brief written submissions are contained in the mother’s outline of case document. At a broad level, these submissions contend that the approach of the mother, which is to “see the children spend significant time with their father between now and October 2013” seeks to “bring to account the developmental and behavioural issues” concerning the children.
The mother contends that “the children have the mother as their primary attachment”, and that the issue of the living arrangement of the children on an interim basis is not “a matter of the primary care of the children (although demonstrably the children have spent more significant time with their mother than their father.”
The mother contends that “[B] is a very sensitive child and requires significant security comforts” such as having a piece of the mother’s hair with her at all times. Furthermore, B “dislikes confrontation and becomes significantly distressed by observations of conflict between the parties, particularly at handover.” The mother also observes the child displays the following behaviour:
a)increased constant fatigability;
b)heightened levels of sensitivity, both physically and emotionally;
c)a predisposition for obsessive compulsive behaviour; and
d)substantial anxiety and security problems.
The mother further notes, with reference to her affidavit filed on 4 January 2013 that B has been treated by paediatrician Dr A for “urinary malformation”, “smaller head circumference”, and “delayed development in coordination of gross motor skills” and has been further treated by psychologist Ms I, occupational therapists Mr J and Ms K, and by urologist Dr L.
B has been enrolled in a program to assist children with delayed gross motor skill development. She has also had “continence issues” at school which result in her wetting and/or soiling her pants at school on a “fairly regular basis.”
The mother claims that the father is “dismissive” of B’s health issues with reference to paragraph [40] of his affidavit filed 11 February 2013 which states “[B] struggles with many aspects of her self-care that other children of her age can do such as dressing herself and opening the car door” and that “[B] is probably unable to attend to some of the most basic self-care because she has been raised by nannies who always attended to her. I am trying to encourage and develop more independence in [B], but my progress is slow as, to the best of my knowledge, the mother still insists that in her home, everything is done for her.” The mother claims that this indicates the father has “no recognition or acceptance” of “the extent to which the child suffers from significant developmental impediments.”
The submissions then refer to the D report at paragraphs [17] and [52] in which the mother claims that “the observations of Mr [D] accord with those of the mother”:
[17]…He [the father] is worried that there is an over pathologizing of [B] that emanates from the history that [the mother] presents to the various health care professionals, who have formed their views based on a skewed representation of [B] and her development.
…
[52]My clinical opinion is that [B] is in fact an anxious child by disposition, she displays quite a marked tendency towards becoming regressed, she engages her parents around behaviour that broadly falls under the category of being less resilient not more resilient, that her parents engage with her differently, and in part this accounts for her different presentation at their respective homes.
The mother contends that “the father fails to appreciate that [C] is 2 years of age and has formed a primary attachment to his mother simply arising out of the care arrangements post-separation and his age.”
With reference to paragraph [65] of the D report, the mother notes that C is currently in “the period between 0-30 months” which is “commonly referred to as the first period of separation and individuation.” During this period, Mr D notes “the process of attachment is all-important.”
The mother then claims that “the time and the method and manner by which C transitions between his parents must be carefully managed in keeping with his developmental and age appropriate milestones” with reference to paragraphs [66] and [72] of the D report:
[66]…Even though no formal assessment of the quality of the attachments was made, there is no doubt that [the mother] is the children’s primary attachment figure and that representation of her not being their primary carer by virtue of nannies is simply not correct …
…
[72][The father] & [the mother] have not managed this situation well, and continuing to have conflict about how to implement the arrangement will also paradoxically be less effective given the rapid transition by [C] from stage to stage in development over the next three to six months and the likely delays concurrent within the Court system. … He has an excellent relationship with his mother, she is clearly his primary carer and his primary attachment figure, and she is obviously very in tune with him. However, the same general principles clearly apply to [the father]. In a hierarchy of attachment figures, he is the next most important. [C] is happy, settled, relaxed, comfortable and confident in his father’s care … however [the father] does not recognise the extent to which his relationship with his son is also recursively impacting upon his son’s behaviour.
The mother goes on to state that notwithstanding the recommendations in the D report as to the time the children should be spending with their father contained in paragraphs [76] and [78] of the D report, the mother “accelerates those recommendations to the extent where by October 2013 both children will be attending their father for substantial time and importantly, together.”
The submissions conclude by arguing that “it is not a matter of physical time that the children spend with each of their parents but that the time spent and the method and manner of its transition if developmentally appropriate in respective of these children taking into account their particular ages and special needs” and that “the children being removed from the parental conflict” is “of more significant importance.”
The mother was represented by Mr Berman, SC at the hearing. Much of counsel’s submissions referred to the D report, which counsel contended “crystallised” the earlier observations of the children made by the mother in her affidavit material.
Counsel suggested that the children have particular and special needs, and that the time the children spend with the father must be structured. Counsel suggested there should be an increase, but such an increase must be measured and consistent to ensure the children are able to cope. Counsel referred to the behavioural issues of B and the youth of C as raised in the mother’s written submissions. Counsel further noted that the D report recognises that the arrangements for the children as they stand are stressful and anxiety inducing.
Counsel contended that if the relationship between the father and the children is to “develop with a solid foundation” then matters must “be taken carefully.” He referred to paragraph [21] of the D report:
[21][The father] does not have concerns about [C]. Even though he acknowledges that [C] has gone through a clingier phase, he emphasized that by the time [C] is in the car with his father, he is settled and relating warmly. Of particular importance, in an overall diagnostic perspective, was the description by [the father] that at times, [C] has to check on his whereabouts “every thirty seconds” explaining that “… sometimes even if I leave him with his grandmother in my home just to run a bath for him h becomes hysterical. At other times when I’m holding him, be becomes hysterical and says that he wants me.” [The father] also told me that there are times when [C] does want his mother, and that more recently he has become distressed at transitions, with his observation being that [the mother] also becomes distressed and that this fuels the situation. Again he emphasized that regardless of what happens at the transition point, that [C] settles very quickly and that when with him, he sees no indication of the clinginess described by [the mother] upon his return.
Counsel submitted that this passage suggests that these are not indicators of significant issues, but rather that there are times when children are ready to spend more time away from the primary attachment parent. On the concept of “primary attachment”, Mr Berman, SC referred to paragraph [66] of the D report:
[66]Attachment is a biologically based cluster of behaviours intended to keep the child close and safe. Attachment is about proximity. … The attachment system is activated by stress and separation. Even though no formal assessment of the quality of the attachments was made, there is no doubt that [the mother] is the children’s primary attachment figure and that representation of her not being their primary carer by virtue of nannies is simply not correct
Counsel suggested that the fact that the children had formed the primary attachment did not detract from the father’s relationship with the children. But it does “set the scene” for the recommendations of Mr D. Counsel referred to paragraph [70] and [72] of the report as evidence of that effect:
[70]From [C’s] perspective, the greater likelihood is the transition from the care of his mother into the care of his father has lacked emotional safety because of the unspoken but clearly apparent tensions that he has perceived. This has been compounded by significant separations from [the mother] under less than ideal circumstances, at times in his development when he has been biologically the most vulnerable to the adverse effects of separation. Frankly, the situation has not been managed well at a time when [C] has been most vulnerable to such poor management. The ideal of more frequent contact of less duration has unintentionally been misapplied by [the mother], that in turn has resulted in a highly fractured and fragmented schedule. Possibly the most telling of anecdotes is that by [the father] himself how described at times that [C] would become inconsolable and hysterical if he left [C] in the care of his paternal grandmother just to run a bath, [C] demanding to know his father’s whereabouts. Similarly, and even more importantly, reference by [the father] to [C] wanting his father, even when his father was holding him in his arms.
…
[72][The father] & [the mother] have not managed this situation well, and continuing to have conflict about how to implement the arrangement will also paradoxically be less effective given the rapid transition by [C] from stage to stage in development over the next three to six months and the likely delays concurrent within the Court system. Simply stated, by the time this matter finally gets to hearing, it may be a moot point given [C’s] age and stage. The focus should however be on causing for [C] as littler internal conflict and distress as possible. He has an excellent relationship with his mother, she is clearly his primary carer and his primary attachment figure, and she is obviously very in tune with him. However, the same general principles clearly apply to [the father]. In a hierarchy of attachment figures, he is the next most important. [C] is happy, settled, relaxed, comfortable and confident in his father’s care , and I suspect that in all likelihood what [the father] has to say about [C] whilst in his care is absolutely correct, however [the father] does not recognise the extent to which his relationship with his son is also recursively impacting upon his son’s behaviour.
Mr Berman, SC then turned to the actual recommendations advanced by Mr D. The recommendations concerning C are contained at paragraph [76], and the recommendations concerning B are contained at paragraph [78]:
[76]The schedule in relation to [C] needs to extend in a way that is slightly less different to what they are doing now. It is not a question of if he will have more overnight stays, but rather when more overnight stays will occur. The application of the idea of greater frequency and less duration has resulted in a highly fragmented, disjointed arrangement, that has compromised [C’s] sense of his relationship with his parents. From his perspective, his mother and father are the two most significant, important people in his life, and he needs to be able to integrate them into a more meaningful whole. [C] should be spending long days, that is, early morning to late afternoon with his father, so that [the father] can be responsible for all aspects of [C’s] care and [C] can come to depend and rely upon him. Nighttime stays are less important at this stage. A better plan is for [C] to spend up to two long days with his father each week, for example on a Tuesday and a Thursday, and the alternate weekend from Saturday morning until Sunday late afternoon, and in that way have as much as 6 days of contact with his father in a fourteen night cycle, but only one overnight. In about three months time, and before his third birthday, there could be the introduction of an extra overnight on the alternate Friday, and with a further three months, a slight change so that the time spent with his father would include a weekend from Friday night until a Sunday afternoon, plus up to three day contacts over the remaining time. The logical progression is to then extend the time until the Monday morning.
[78][B] in my view should be spending more time with her father and this should include every alternate weekend and time in the other week. She does not developmentally need the same contact with her father as does [C]. My suggestion is that [B] should be seeing her father every alternate weekend from a Friday night until a Sunday night, with a collection from school, as well as time in the other week. This could be more informal around activities, and could certainly entail a night each other week. It of course would be significantly better for this to be implemented and reviewed.
Counsel admitted that the orders sought by the mother are not identical to the recommendations in the D report. Instead, counsel contended that the “substance of the report is mirrored in the application or in the orders sought,” and that these orders were “pretty much in line with the times that Mr [D] promotes.” The mother is said to have combined “those matters raised by Mr [D] with her own proper experience of the children and where she sees the matter progressing.” The mother contends that a “more sensitive” approach is needed for these children as opposed to the typical “alternate weekends” style orders that are “normally sought by litigants.”
Submissions of the father
The father filed an outline of case on 3 May 2013. Counsel states that the following documents were relied on at the hearing:
a)Amended response to an Initiating Application filed on 2 May 2013
b)Financial statement of the father sworn on 31 January 2013 and filed on 11 February 2013
c)Affidavit of the father sworn on 6 February 2013 and filed on 11 February 2013
d)Affidavit of the father sworn on 1 May 2013 and filed on 2 May 2013
e)Affidavit of Mr D sworn on 24 April 2013 and filed on 2 May 2013.
Brief written submissions are contained in the father’s outline of case. These submissions contend that it is in the best interests of the children for the parties to have equal shared parental responsibility and for the children to spend equal time with each parent for the following reasons:
a)The children have a close relationship with him, and it is in the children’s best interests that this relationship be “further fostered and enhanced.” The current arrangement does not allow this to happen and “does not meet the children’s need to have a meaningful relationship with their father.”
b)An equal time arrangement would avoid “multiple changeovers between the parties and the fragmentation of the children’s week” which occurs under the current regime.
c)An equal time arrangement would allow the children to maintain and develop a relationship with the father’s extended family.
d)An equal time arrangement is reasonably practicable as the parties live close to each other, the father is self-employed and as such has flexible work commitments, and the parties are able to communicate effectively with each other notwithstanding the litigation.
e)An equal time arrangement would “allow the father to participate more meaningfully” in the children’s “growth and development” and would “increase the amount of face to face time” the children have with their father.
The father was represented by Mr Geddes, SC at the hearing. In a similar manner to counsel for the mother, counsel for the father relied heavily on paragraphs, or parts of paragraphs, from the D report which were said to support the father’s proposed orders concerning the interim living arrangements of the children.
Counsel commenced his submissions by noting that the mother’s position in relation to the interim living arrangements of the children is not supported by the D report. Specifically, counsel referred to the following excerpts.
[62]From a post separation parenting perspective, their situation has not been managed well and many of the current problems could have been significantly averted had they been more receptive to more cooperative psychological assistance from a developmental and educational perspective, as compared to the more adversarial stance that both seek in relation to each other now.
…
[71]Because of the fundamental problems and the lack of communication between them, [the father] & [the mother] have not only been combative but have also imposed upon [C] a very inappropriate schedule of time spent across all factors of the relationship and caused to their son considerable stress that in turn has activated the attachment system, that has in turn fuelled [the mother’s] anxieties and caused her distress. … Paradoxically, it is the more fragmented nature and the coming and going of his father in his life that has confronted [C] with the possibility that his mother too would come and go in his life, and so the clinginess and the need for reassurance.
Counsel then noted that the D report recommends more overnight time for the child C to spend with his father with reference to the following excerpts:
[76]The schedule in relation to [C] needs to extend in a way that is slightly less different to what they are doing now. It is not a question of if he will have more overnight stays, but rather when more overnight stays will occur. The application of the idea of greater frequency and less duration has resulted in a highly fragmented, disjointed arrangement, that has compromised [C’s] sense of his relationship with his parents. From his perspective, his mother and father are the two most significant, important people in his life, and he needs to be able to integrate them into a more meaningful whole. [C] should be spending long days, that is, early morning to late afternoon with his father, so that [the father] can be responsible for all aspects of [C’s] care and [C] can come to depend and rely upon him. Nighttime stays are less important at this stage. A better plan is for [C] to spend up to two long days with his father each week, for example on a Tuesday and a Thursday, and the alternate weekend from Saturday morning until Sunday late afternoon, and in that way have as much as 6 days of contact with his father in a fourteen night cycle, but only one overnight. In about three months time, and before his third birthday, there could be the introduction of an extra overnight on the alternate Friday, and with a further three months, a slight change so that the time spent with his father would include a weekend from Friday night until a Sunday afternoon, plus up to three day contacts over the remaining time. The logical progression is to then extend the time until the Monday morning.
Counsel then noted that the orders sought by the mother do not reflect the recommended orders as contained in paragraph [76]. Counsel conceded that the father’s orders sought did not strictly adhere to these recommendations either.
Counsel noted that the mother’s orders sought appear to reduce the time the father is to spend with C in Term 3 once Term 4 commences. Counsel contended that the mother provides no reason for this reduction, nor any reason at a broader level as to why her orders should be preferred to those recommended by the D report.
Mr Geddes, SC then referred to a number of paragraphs in the D report that dealt with the interaction of the children with the mother and with the father as detailed in paragraph [45]. Specifically, counsel referred to the following excerpts concerning his impression of the child B at a broad level.
[46]The time spent with [B] was particularly illuminating. She is an intelligent, articulate and engaging girl. She related extremely warmly, developed extremely good rapport and was comfortably interactive. In this regard, her presentation was very similar to that described by both parents of [B] in the company of adults.
…
[48]...There was a real flavour of dependence, amidst a lack of self-sufficiency and independence. [B] clearly invited adult intervention that would have stifled her capacity to perform beyond her own expectations.
[49]…Whilst I have no doubt that this description of her is extremely important in terms of understanding her overall presentation, my direct experience with [B] also highlighted the importance of environmental context and reinforced that children’s behaviour does not occur in isolation, but in part at least, occurs in relation to the behaviour of the adults around them. … As I will elaborate upon further, even in my single meeting with [the father] & [the mother] and the children, this feature to [B’s] interaction with her parents was quite prominent.
[50]…She portrayed her parents unequivocally positively. She loves her parents equally but is more dependent and reliant upon her mother. [B] generally perceives her mother as the central hub, but spoke unequivocally and positively about her father and her time spent with her father. … She impressed as a happy child.
[51]…All of the behaviour described of her could be managed differently, more assertively, more confidently and more constructively.
Mr Geddes, SC then referred to the following paragraphs which refer to the time Mr D observed the children with the mother:
[53]My observations of both children at the homes of their parents respectively were revealing. Elements of what was described of both children by their parents separately was clearly evident. At the home of her mother, [B’s] behaviour was at times quite regressed. She was very attention seeking of her mother and there were certainly features of negative attention seeking. She portrayed herself as dependent and needing her mother’s attention, and it appeared to me that her dependency became at some points a currency for their interaction. If things didn’t go her way, or if her mother did not respond immediately, she very quickly became “sooky”, sulking and “ratty”. This behaviour escalated to the point that she “needed” her mother’s intervention. Her behaviour was at times quite labile, there was a dramatic quality to it, on one occasion she stormed off to her room and slammed the door because her mother did not respond immediately, that in turn prompted [the mother] appropriately to intervene, but nonetheless from a behaviour perspective this behaviour engaged her mother in a more negative way. On other occasions she became very teary and very easily in response to some perceived injustice involving her brother, again demanding her mother to intervene and attending to her. The sort of behaviour about which [the mother] described concern was also at one level a particularly effective way for [B] to engage her mother. Her emotional fragility, her teariness and her general not coping and low levels of frustration with tasks became very effective at engaging her mother’s attention and even sympathy, and I noted that some of her behaviour became very regressed very quickly. At one point she sought the locket of her mother’s hair and became upset when she couldn’t find it, and she was quite effective at engaging her mother’s physical and emotional attention. Even though there were many very positive aspects to [the mother’s] interaction with the children generally, and she clearly parents at a very high level and she is clearly in tune and very aware of her children and their emotional state, there is also a component thereof that revealed the ease with which [B] was able to engage her mother from a more negative perspective.
[54]…It also appeared to me that [the mother] had come to accommodate too much of [B’s] behaviour.
[55]…It appeared to me also obvious that regardless of whatever else could be said about this behaviour, that it was also extremely attention seeking and successfully so, and that [B] was particularly adept at engaging her mother’s attention around the sort of behaviour that [the mother] was generally concerned about.
Mr Geddes, SC then turned to the observations of the father’s time with the children as contained in the D report:
[56][B’s] behaviour in relation to her father was qualitatively different. Her quality of engagement with him was more activity based and he very quickly settled her into activity, focusing on motor skills. She was also very much the focus of his attention. There did not appear to be the same quality of intensity to the relationship between [the father] and [B]. In general, a clinical observation of parents with children of this age is that children perceive their mothers as doing more “for them” and their father doing more “with them,” and this was certainly my impression of the children in the care of [the father]. He seemed very well resourced, he was attentive, he was focused and the children were very obviously relaxed in his company. He managed both of them well, shared his attention comfortably, but even in my general discussion with him, it appeared to me that he to tended to accommodate to some of [B’s] anxiety and seemed at times uncertain as to whether her presentation had to do with her developmental disposition or not. Generally however, he impressed as confident and robust with the children, and more importantly they seemed very relaxed and comfortable in his company.
Mr Geddes, SC noted that the mother seeks the continuation of a parenting arrangement that is described in the D report at paragraph [70] as a “highly fractured and fragmented schedule.” Counsel contended that the mother had provided no reasons to support her diversions from the orders recommended in the D report.
As a concluding remark on the interim parenting arrangements, Mr Geddes, SC then turned to the following extract from the D report:
[65]In order to make good decisions regarding [B] and [C], requires some appreciation of important psychological and developmental processes relevant to their age and stage.
Mr Geddes, SC noted that the orders sought by the mother suggest that the mother wants to make these decisions unilaterally, against the recommendations of the D report. For example, the D report recommends that the time the child C spends with the father should increase before his third birthday in August, whilst the mother suggests it should occur in October 2013.
As a fall-back position, counsel referred me to paragraphs 2.1 and 2.2 of the earlier interim parenting orders advanced by the father in his amended Response to the mother’s application filed on 2 May 2013. These orders are set out above.
Counsel noted that the father’s solicitors has employed the mechanism provided for in r 15.65 of the Family Law Rules 2004 (Cth) to ask Mr D various questions arising out of the D report. One of these questions asked by the father, question 18, asks whether “there is any compelling reason (or reasons)” why the children spending time with the father in accord with the interim parenting arrangement provided in paragraphs 2.1 and 2.2 of the earlier interim parenting orders advanced by the father in his amended Response to the mother’s application filed on 2 May 2013 would not be of benefit to the children.
The response to this question is lengthy, but Mr Geddes, SC suggests that Mr D “doesn’t appraise it” but also “doesn’t reject it.” In the answer, Mr D states “As a rule of thumb, the longest period that preschool children should be away from their home base is their age plus a day. [C] is two and a half years so by the time the mid term holidays come around, the longest period he should be away from his mother at a single is about four nights.”
This is roughly in accord with paragraphs 2.1 and 2.2 of the earlier interim parenting orders advanced by the father in his amended Response to the mother’s application filed on 2 May 2013.
Counsel then turned his attention to other issues concerning the interim parenting arrangements. He noted that the father wants the child to continue going to nursery school when in the care of the mother with reference to paragraphs [4] to [7] of the father’s affidavit filed 2 May 2013 and interim order as sought in paragraph 8 as contained in the father’s outline of case filed on 3 May 2013.
Counsel noted that there is no provision in the orders sought by the mother for the father to see the children on their birthdays. Counsel contended that the father’s orders sought make provision for such occasions.
Counsel further sought that the parenting arrangements that I order should continue through the school holiday periods, and that such an arrangement would be consistent with the comments and observations in the D report.
Submissions of the mother in response
Counsel for the mother briefly responded to the issue concerning C’s childcare raised by counsel for the father. He stated that the mother simply chooses not to send the child to childcare, and that the mother does not have a difficulty with the father sending the child to childcare in the time the father is spending with the child.
Consideration
In the amended Initiating Application the mother does not seek an order for sole parental responsibility.
In the interim orders sought by the father he seeks an order that the parties have equal shared parental responsibility for both children. He sought such final orders in his Response to the Initiating Application.
The provisions of s 61DA require the Court to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility, unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of a child who is a member of the parent’s family or family violence (s 61DA(2)).
Section 61DA(3) and (4) provides:
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)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.
On an interim basis there is clearly a presumption which has not been rebutted by the evidence before the Court. The presumption is therefore that it is in the children’s best interests for the parents to have equal shared parental responsibility.
Section 65DAA is therefore applicable. The Court is then required to consider whether the children spending equal time with each of the parents would be in the children’s best interests and whether it is reasonably practicable. If so, then the Court is required to consider making an order to provide for the children to spend equal time with each of the parents. Subsection (2) provides that if the Court does not make an order for the children to spend equal time with each of the parents, the Court must consider substantial or significant time with each of the parents and whether that is in the children’s best interests and reasonably practicable.
In the interim order sought by the mother, which would apply for the second term concluding on 28 June 2013, she sought that B spend time with the father in week 1 from 9.00 am until the commencement of school for the purposes of taking B to school and then overnight on the Friday from the conclusion of school until 6.00 pm Saturday. In week 2 the mother proposed that B spend time with the father from the conclusion of school to 6.00 pm on Wednesday and overnight from 8.00 am on Saturday until 2.00 pm Sunday.
During that term the mother proposed that C in week 1 spend from 8.00 am until 11.30 am on Mondays, overnight on Fridays from 2.00 pm until 6.00 pm on the Saturday. In week 2 she proposed that C spend time from 11.00 am on Wednesday until 6.00 pm on the Wednesday and overnight from 8.00 am on Saturday until 2.00 pm on Sunday. The differences appear to relate to the fact that B is attending school and C is not.
In contrast the father was seeking orders in term 2 of 2013 for B to spend from 9.00 am on Sunday to the commencement of school or 9.00 am on Wednesday in the first week. From 9.00 am or the commencement of school on the Wednesday until 9.00 am on the Sunday in the second week.
With respect to the younger child C, the father proposed that during term 2 he spend time with C from 9.00 am on the Sunday until the commencement of nursery or 9.00 am on the Tuesday in the first week and from 9.00 am or the commencement of nursery on Thursday until 9.00 am on Sunday in the second week.
Both of the proposals have different times for each of the children during the remainder term 2 in 2013. The delivery of this judgment towards the end of June 2013 suggests that it would not be practicable or in the children’s best interests for one regime to be put in place for the very short period that remains for term 2 in 2013.
For term 3 in 2013, being the period from Monday 22 July 2013 to Friday 27 September 2013, the mother is proposing that B spend time in alternating week arrangements provided that in week 1 that she spend overnight from 4.00 pm on Sunday until 6.15 pm on Monday and overnight from 5.00 pm on Friday until 4.00 pm on Sunday. In week 2 on Wednesday from the conclusion of school until 6.00 pm and overnight from 4.00 pm on Sunday until 6.15 pm on Monday.
The mother proposed that C spend the same time as B during week 1 and in week 2 the same time except that on the Wednesday the father’s time commence at 11.00 am.
The father proposed that from the commencement of term 3 2013 the children live with the father in a fortnightly cycle from 9.00 am on Sunday until the commencement of school / nursery or 9.00 am on the Wednesday in the first week and then from 9.00 am or the commencement of school / nursery on the Wednesday until 9.00 am on the Sunday in the second week.
Both parties had various proposals for specific special occasions.
It is clear from the orders proposed by both of the parties that each of the parties are proposing that the children live with or spend time with each of the parents which over a period of time concludes with the children spending significant time with each of them.
Both parties have placed emphasis on the benefit of the children having a meaningful relationship with both of the parents. There is no specific allegation made about the need to protect the children from physical or psychological harm or being exposed to abuse, neglect or family violence (s 60CC(2)).
Section 60CC(3) additional considerations.
(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.
Taking into account the ages of the children, any views expressed by the children would not carry significant weight in this interim determination.
The report of Mr D, the clinical psychologist (dated 26 February 2013), refers to B’s anxiety, but also refers to B being “very relaxed and comfortable” in the company of her father. (Paragraph 56 of Mr D’s report)..
C also expressed concern about being with his father, saying that he did not like his father and that he wanted to stay at home with his mother. (Paragraph 57 of Mr D’s report). There was however “nothing about his behaviour that was untoward and when it was time for bed his father put him to bed, and within minutes he had settled; …” (end of Paragraph 57).
At the conclusion of paragraph 75, after discussing B’s particular capacities, Mr D said, “… Not surprisingly [B] wants more time with her father, enjoys the attention from him and he is important”.
(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);
The report of Mr D and the answers to questions put to him on behalf of the parties emphasises the strong secure attachment of C, as a young child with his mother, and the appropriate concerns about arranging for a gradual increase in the time C spends away from the care of his primary care giver, his mother. Otherwise, the submissions of each of the parents and the conclusions of the clinical psychologist, Mr D, are that the children enjoy good relationships with each of the parents which are regrettably (according to the psychologist) not being promoted by the parents’ inability to overcome the tensions created for the children by the parents’ poor relationship with each other.
(c)the extent to which each of the child's parents 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
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Neither of these subsections are significant in the interim decision to be made concerning these children. Certainly the parents appeared to both wish to participate in, and have in the past participated in, making decisions about the children, spending time with the children and communicating with the children. There is no issue about the question of each parent’s obligations to maintain the children.
(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;
This is one of the significant factors referred to particularly in relation to the impact upon the children’s developmental and psychological health. The father maintains that the orders he is seeking will not be detrimental and will indeed be beneficial to the children. The mother maintains that due to the children’s special needs and ages that separation from her is likely to be detrimental. Both parties have suggested orders which would provide for the children spending time with each other, whilst in the company of each parent where possible. There are of course differences due to the fact that B attends school and C does not.
(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 only significance in this factor is the need for practical arrangements which would have to be made in relation to handing the children over at different times whilst B is going to school and C is not.
(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;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
As indicated in the affidavits filed by the parties and the report of Mr D, there is a significant difference in the allegations which each party makes about the other’s attitude to the responsibilities of parenthood and the capacity to provide for the children’s emotional, psychological and intellectual needs.
Taking into account the time which the mother proposes the children spend with the father, there is however clearly a concession that the children should be spending significant time with the father.
(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;
The report of Mr D sets out the developmental, emotional and psychological characteristics of each of the children. These are clearly relevant. In particular in relation to C, care should be exercised to ensure that his separation from his mother does not cause developmental difficulties or emotional problems. In relation to B, it is not possible to draw firm conclusions about her condition and any causes.
The expert however emphasises that it would be beneficial for the children for the parents to improve their relationship with each other and limit the exposure of the children to conflict and uncertainty. The characteristics of the children as set out in the expert’s report suggests that “routine and limited disruption would be beneficial to both children”.
Subparagraphs (h), (j) and (k) are not relevant to the present decision.
(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;
This is an interim application and as such should be an order which is capable of operating until the final determination of all matters in dispute.
(m)any other fact or circumstance that the court thinks is relevant.
Not applicable.
In the final stages of the report of Mr D, the independent expert expresses the view that B should be seeing her father every alternate weekend from Friday night until Sunday night, as well as time in the intervening week. (Paragraph 78 of Mr D’s report).
In relation to C, the report concludes that:
[C] is displaying a range of behaviours that are vey normal and in fact reflective of psychological health. His separation anxiety is developmentally appropriate, but is also reflective of a parental relationship lacking cohesion, safety and security for him. (Paragraph 81 of Mr D’s report).
In paragraph 76 of the report, Mr D suggests that:
Nighttime stays are less important at this stage. A better plan is for [C] to spend two long days with his father each week, for example on a Tuesday and a Thursday, and the alternate weekend from Saturday morning until Sunday late afternoon and in that way have as much as six days of contact with is father in a fourteen night cycle but only one overnight. In about three months, and before his third birthday the introduction of an extra overnight on the alternate Friday, and within a further three months, a slight change so that the time spent with his father would include a weekend from Friday night until a Sunday afternoon, plus up to three day contacts over the remaining time. (Paragraph 76 of Mr D’s report).
As indicated in the report of Mr D, the Court takes into account the incapacity of the parents to cooperate and that the “lack of cohesion between [the father] and [the mother] is a major problem” which he says is not only a problem for the parents, but also for the children. (Paragraph 73).
It is therefore in the best interests of the children that arrangements be put in place that take into account their emotional and developmental needs, and in particular their ages, and individual characteristics, whilst at the same time reducing the disruption to their general lifestyle and reducing their exposure to the poor relationship between their parents.
Proposed Orders
The orders will hopefully provide the children with the benefit of having a meaningful relationship with each of their parents and at the same time be arrangements which will reduce the negative impact of changes in their household arrangements and being separated from either of their parents.
The orders which the father seeks in relation to both children after the commencement of term 3 in 2013, are a significant increase in time for both children.
The more sensible, practicable and less disruptive arrangements for the children would be an arrangement in which the opinion of the single expert is taken into account, with C spending significant day time periods with the father and B spending alternate weekends with the father and an evening during the intervening week.
Taking into account the specific needs and ages of both children their best interests require that the time increase gradually until they are both living with the father at the same time.
These interim orders should include school holiday time with minimum disruptions for an increased period of time until both children have had an opportunity to make the necessary adjustments, after which the school holidays should be shared equally.
Due to the special needs of B and the young age of C it is not at this time in the best interest of the children to make an order for equal time or for any more significant time than the orders set out herein.
Conclusion
The interim parenting orders made today conclude the interim proceedings between the parties. The interim financial matters were resolved by Consent Orders made on the day of the hearing.
I certify that the preceding one hundred and six (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 21 June 2013.
Associate:
Date: 21 June 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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