KATZER & KATZER - [2011] FMCAfam 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KATZER & KATZER

[2011] FMCAfam 85

FAMILY LAW – Interim parenting arrangements – school arrangements – substantial change in circumstances.

Family Law Act 1975, ss.10J, 61DA(2)(5), 65DAA, 60CC, 60I, 60R(10)
Evidence Act 1995

Goode & Goode (2006) FLC 93-286
Marvel [2010] Fam CAFC 101
MRR & GR [2010] HCA 4

Applicant:

MS KATZER

Respondent:

MR KATZER

File Number:

BRC8051 of 2008

Judgment of:

Harman FM

Hearing date:

21 January 2011

Date of Last Submission:

21 January 2011

Delivered at:

Parramatta

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

N/A

ORDERS

All existing parenting orders with respect to the child, [X] born [in] 2005, are discharged.
[X]’s parents shall have equal shared parental responsibility for him.
Pending further order, that [X] shall live with his Father, Mr Katzer:
(a)For two out of three weekends each school term from the conclusion of school Thursday till 6pm Sunday and provided that Mr Katzer is available to collect [X] from school on Thursday and Friday afternoon and return him to school on a Friday morning, and if not then to commence from the conclusion of school Friday.
(b)For a period in each NSW School Holiday Period from either the conclusion of school on Thursday or Friday (to be Thursday if it is a scheduled weekend for [X] to spend with his Father and Friday if not) till 6pm on the middle Sunday of the NSW School Holiday Period.
(c)Such further periods as are agreed between [X]’s parents from time to time.
[X] is to live with his Mother, pending further order, at all times, save when [X] is living with his father.

THE COURT FURTHER ORDERS THAT:

For the purpose of [X] passing between his parents, Mr Katzer is to collect [X] at the commencement of each period from school, or if not a school day Ms Katzer’s home and Ms Katzer is to collect [X] at the conclusion of any period [X] is spending with father from his father’s home.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to:
(a)Cause [X] to be enrolled at and attend [E] School, commencing Term 1 2011;
(b)Ensure both parent’s contact details are known to the school;
(c)Enable each parent to participate in school life to the maximum extent that they may desire, including each parent giving all authorities necessary to enable the school or any individual member of staff to provide to each parent any school reports, photo order forms, newsletters, correspondence or information sought by either parent and to discus [X]’s attendance and progress and general welfare in the school community and to attend at the school and/or with [X] at all times acceptable to the school.
Each parent shall advise the other forthwith and contemporaneously of the event of any significant illness or hospitalisation relating to [X] and shall give such consents and authorities as are necessary to enable any treating medical practitioner to discuss with both parents [X]’s health and treatment and to enable both parents to visit [X] if hospitalised.
Each parent shall keep the other advised at all times of their residential address, landline telephone number, mobile number and any other emergency contact details.
Each parent shall be entitled to communicate with [X] by telephone at all reasonable times and with reasonable frequency and, should they desire, on a daily basis.
Pursuant to s.13C the parties are directed to forthwith arrange and attend Family Dispute Resolution, at their own cost.
Adjourn proceedings for further mention and directions before me at 9.30am on 21 April 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

BRC 8051 of 2008

MS KATZER

Applicant

And

MR KATZER

Respondent

REASONS FOR JUDGMENT

Before the court are interim parenting applications with respect to a child [X] born [in] 2005 and accordingly, not yet quite six years of age.
The proceedings have come on at relatively short notice and with respect to issues relating to [X]’s schooling for 2011 which will be [X]’s first year at school in kindergarten. The parties are unable to agree on that issue and the issue is more complex than purely a dispute as to a school that will be selected. Indeed, the evidence of the parties and particularly Mr Katzer would suggest that in March or thereabouts of 2010 there was relevant agreement as to the school that [X] would attend although it is contended by Ms Katzer that there have been a substantial change in circumstances by which the apparent agreement between the parents would no longer proceed or, indeed, would no longer be a workable, practical arrangement nor one in [X]’s best interests.

Background and history

The parties to these proceedings have been engaged in litigation for some little while although not to any extraordinary or excessive degree. It is useful in my mind to chronologically review the matter to track the developments and the occurrences in these parties’ lives.
The parties commenced cohabitation in March of 2004. At that point in time it is unclear where the parties were cohabitating, but one can infer from the information available to the court today that this was in New South Wales.
The parties were married [in] 2005 and [X] was born a short time later on [date omitted] 2005.
In July 2007, the parties commenced to cohabit together in Queensland. There is nothing to suggest that the parties had separated at any time prior to that so, accordingly, it would appear to have been a joint move by the parties to Queensland.
A little time after moving to Queensland and on 4 January 2008, the parties separated. Following separation it is asserted by Mr Katzer that he had encountered substantial difficulty in being able to spend time with [X]. It is also instructive to turn to Mr Katzer’s material in that regard with indicates:
Since separating on 4 January 2008, I repeatedly requested that [X] share equal amounts of time between [Ms Katzer] and I.
At that point in time, ie, when these parties separated, [X] was two and a half years of age.
Following separation in January and on 3 July 2008, the parties participated in mediation. It is again asserted by Mr Katzer with respect to that mediation that for the months leading up to it that there have been some real difficulty in his spending time with [X]. That is laid squarely at the feet of Ms Katzer and Mr Katzer has indicated in his affidavit material:
During the months of April, May and June 2008, [Ms Katzer] severely hampered my ability to have contact with [X] including a four‑week period where I was denied any contact with him at all.
It goes on to indicate:
At the time of the mediation in July 2008, I was being denied any contact with [X] by [Ms Katzer]. [Ms Katzer] would only agree to [X] sharing three nights per fortnight on alternate weekends with me during this negotiation. This was not preferred by me as I believed equal shared time was in [X]’s best interests. A parenting plan was agreed on 3 July 2008 at the conclusion of mediation.
There is some difficulty with respect to that evidence in that clearly what is asserted is communications that occurred during family dispute resolution or mediation, (taking, for present purposes no issue as to the semantic difference between the two phrases) as s.10J of the Family Law Act 1975 makes evidence of anything said in the presence of a family dispute resolution practitioner during family dispute resolution is inadmissible. In any event, the end result of the FDR did not appear to be controversial as between the parties being that following the family dispute resolution process agreement had been reached and a parenting plan executed providing for those arrangements.
It is then suggested that within a month of the mediation and on

8 August 2008, correspondence was received between (then) solicitors indicating that Ms Katzer intended to relocate to Sydney with [X] to take up a position of employment in October of 2008. Correspondence passed between the parties lawyers which was not successful in resolving issue between them, there being opposition at that point in time by Mr Katzer to Ms Katzer’s relocation.
On 2 September 2008, proceedings were commenced in the Federal Magistrates Court at Brisbane and consequently interim orders were made in those proceedings which firstly restrained any relocation of [X] from that area and provided for an equal shared time arrangement, on a week about basis, between the parents with respect to [X], those orders having been made on 6 October 2008.
It is then asserted, and there doesn’t appear to be any serious challenge, that from that time, ie, October 2008 to the present, that there has been a shared care arrangements between these parents and a very equal shared care arrangement.
Following the making of orders on 6 October 2008, Ms Katzer relocated to Sydney with [X] and a week about shared care arrangement then ensued which involved [X] travelling to Queensland each alternate week to be in his father’s care and spending each alternate week in Sydney in his mother’s care.
Ultimately, Mr Katzer relocated to Sydney and this, if nothing else, obviated the need for the week about arrangement to enable these parents to share [X]’s care.
Further orders were entered into between the parties on 6 November 2008 and again on 11 February 2009. Further and final orders were entered into between the parents with respect to both property adjustment and parenting and they are the parenting orders which are presently in force. Those orders provide, to the extent that they are relevant, for an equal shared time arrangement between the parents, that the parents have equal shared parental responsibility and that the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made.
(b)They shall consult with the other on terms that they agree.
(c)They shall make a genuine effort to come to a joint decision by meeting a person, seeking advice, using a formal mediation service if no agreement is reached.
There is no specific reference in the existing orders regarding equal shared parental responsibility and education, but they are matters that would, within the definition of major issues within the Family Law Act, be issues that these parents, having equal shared parental responsibility, must consult and endeavour to make joint agreements about. That is a matter of some relevance to this case as a portion of Mr Katzer’s case, as I understand it, seeks to assert something in the order of promissory estoppel or issue estoppel regarding the schooling issue, and on the basis that it is asserted that as far back as March of 2010 there was agreement as to one of two schools for [X] to attend commencing 2011 which schools had been nominated by Mr Katzer, being either [H] School or [B] School, and accordingly, it is submitted that this decision should be given force and proceed. That is not what Ms Katzer seeks. She seeks to be able to enrol [X] at [E] School which is proximate to her home and to which I will return shortly.
As regards chronology, the week about shared care arrangement stayed in place from 6 October 2008 until about 12 July 2009. Since that time the parties have continued in an equal shared care arrangement but have varied the arrangement so that [X] spends two nights with his father, two nights with his mother, five nights with this father and five nights with his mother in each fortnightly period. The orders that were made on 11 February 2009 also make specific provision with respect to schooling. At order 20, the following is provided:
The child, [X], attend a public primary school to be agreed by the parents and located within a 15 kilometre radius of:
(a) Either parents’ residential address, or
(b) [mother’s workplace omitted].
It is to be noted that [X] is, of course, a boy and there is no reasonable possibility that he is ever going to attend [G] School. [Mother’s employment details omitted]. That is no longer the case or at least will no longer be the case next week from the commencement of term 1 2011, when Ms Katzer will commence at [workplace omitted], which is proximate to her home on the Central Coast, Ms Katzer residing at [O].
The parties continue to live some distance apart and have done so for some little time. Ms Katzer has lived on the Central Coast whilst

Mr Katzer has lived in the northern suburbs of Sydney and specifically at [H].
The material that each of the parties have filed suggest that, notwithstanding the distance between their homes, that they have continued to make arrangements so that the sharing of time has continued to occur with respect to [X] and it would seem, whether clear from the evidence or by inference, that Ms Katzer has been required to use some level of day care to be able to assist her in meeting her employment obligations as well as having [X] in her care. The parties had previously agreed that [X] would attend a day care centre at [B], which is somewhere between the parties although certainly much closer to [H], and that this has done with the agreement of and to the benefit of both parents in enabling them to continue with their respective employments.
Ms Katzer was, for 2010, travelling to the [H] area to attend [workplace omitted] each day, and was not dramatically inconvenienced by using day care at [B]. Mr Katzer works in the Sydney CBD and travels from [H], and accordingly that day care centre was, again, proximate for him. Mr Katzer also has the assistance of his partner, Ms B, with whom he has lived for some little time. They have a child together, [Y], who will, next week, turn one year of age, and they are expecting a second child in mid June 2011.
The proposals of each of the parties for the future are dramatically at odds. Mr Katzer proposes that the equal shared time arrangement continue and that [X] be enrolled at and attend [H] School.
Mr Katzer’s affidavit material suggested [H] is an out of an area enrolment, although it is, after all, an adjoining suburb. It’s not a substantial issue, and in any event, his enrolment has been accepted.
Ms Katzer proposes that [X] would attend [E] School, which is proximate to her home and to her place of employment from 2011. The hours of the primary school and Ms Katzer’s [workplace] are not identical, and indeed Ms Katzer would commence work a short time after [X] would commence school each day and she would finish work a short time before [X] completes each day. Accordingly, she would be in a position to take [X] to and from school each day, on her evidence.
Mr Katzer has indicated that he is in a position to be able to undertake to the court that [X] will be dropped off and picked up each day that he is in Mr Katzer’s care by “somewhere well-known to him.” Ms Katzer has been critical that indeed the majority of care will devolve to Ms B, Mr Katzer’s partner. Whether that is so or not, Ms B would appear, from the evidence, to be someone who is well-known to [X], who has been part of his life for quite some little time, and who is his stepmother and mother of his sibling, and soon to be two siblings, and no doubt has had some active role to play in past arrangements and accordingly is prepared to do so and well acquainted and familiar with them.
Ms Katzer’s hours of work are those of a [occupation omitted]. That is not to suggest that [occupation omitted] only work school hours, but her required hours of attendance at her place of employment, as I have indicated, largely reflect those of [X]’s attendance at school but with sufficient slight distance to ensure that Ms Katzer is available, on her evidence, to collect and return him from school each day and to be attending school relatively proximate to her place of employment and place of residence with [X].
The arrangements that have been in place between the parties have previously been largely negotiated by arrangement. The distinction in present proposals is twofold. Firstly, the parties have not been able to agree on the arrangement, and secondly, Ms Katzer proposes that there would be a change in time arrangements as well as an order being made for [X] to attend school at [E].
That, of course, is resisted by Mr Katzer, and he does not propose any change in time. That, in combination with the chronology with respect to this matter, leaves an impression, having regard to the evidence overall, that past parenting arrangements have, particularly having regard to the portions of the evidence I have referred to above, served the needs of these parents and their senses, respectively, of entitlement, perhaps a little more than they have served [X]’s best interests. I have been clear with each of Mr and Mrs Katzer in indicating to them the approach that must be adopted by this court and is, accordingly adopted.

Legislative approach

I commence by considering the objects and principles as set out in the legislation, and I incorporate those objects and principles in these reasons. The objects and principles are designed as a philosophical underpinning of the legislation and designed to inform the decision-making process, rather than forming part of the substantive law, although a great amount of that which is set out in the objects and principles is repeated in the substantive provisions of the legislation which guide my decision-making.
I am then required, having considered the evidence of the parties and their respective proposals, to consider whether the presumption of equal shared parental responsibility pursuant to s.61DA should apply.
In this case, the parties already had orders which provide for equal shared parental responsibility. That, of course, does not bind the court, but one would be cautious in those circumstances, particularly on an interim basis, from departing from that which has previously been ordered by consent.
The presumption can be rebutted in three circumstances, none of which would appear to apply in this case, being (a) allegations of abuse of the child; (b) allegations of family violence; or (c) the court being satisfied that it is not in the child’s best interests for his parents to continue to have equal shared parental responsibility. There is also some difficulty in any of the grounds of rebuttal being relied upon at an interim level, when the court is cautioned by the Full Court from making findings of fact. Accordingly, rebuttal without a finding of fact would be difficult to envisage.
Subsection (3) of s.61DA provides that the court need not apply the presumption in circumstances where the court is satisfied that it would not be appropriate to do so. I am not so satisfied; accordingly, the presumption will apply and the existing order for equal shared parental responsibility, which I am not urged to change, will continue.
If the presumption applies, one is required to then turn to s.65DAA and consider, in turn, equal and substantial and significant time before considering any other time arrangement. Indeed, these parties already have an order in place which provides for equal time. The issue is whether that time arrangement should change in combination with parties’ proposals as to where this child should attend school.
In determining what time arrangements should apply the court is required to consider the dual test of what is reasonably practical, as set out in subs.(5) of s.65DAA, as well as what is in this child’s best interests, pursuant to s.60CC. There is some suggestion on the evidence that the equal shared care arrangement, whilst it has been longstanding, has not necessarily always well served this child’s needs. In that regard, I note that it is asserted by Mr Katzer that he has adhered to the belief, since separation and since [X] was two and a half years of age, that an equal shared care arrangement would be in his best interests, and secondly, that since October 2008, when [X] was a little over three years of age, that there has indeed been a shared care arrangement in force between these parents.

Mr Katzer’s evidence indicates, and certainly his evidence goes on to indicate his response to same, that “[X] did not cope well emotionally with spending a block of one week with each parent.” As a consequence, the change I have referred to, to the two-two-five-five shared care arrangement, was instigated. It is perhaps not surprising that [X] was not coping well with week about block arrangements, noting that when those arrangements commenced, he was just turned three and all available social science would suggest that such an arrangement would be contraindicated for a child of that age. Added to those difficulties was the fact that this child was, for a substantial period of time, from October 2008 until July 2009, continuing in that equal shared care week about arrangement as well as, for the majority of that time, transiting between Sydney and Brisbane on a weekly basis.
How these parents could possibly have thought that that was a sustainable, practical arrangement, let alone one which was in their child’s best interests, is difficult to comprehend, but in any event, it was the arrangement that they put in place. It is then indicated that, following the changes that have occurred, that
“[X] understands the days of the week and successfully adjusted to the shared care arrangements. The regular routine of sharing time with both [Ms Katzer] and I across specific days has allowed [X] to settle well after his relocation.”
It is to be noted that, for a period certainly in excess of 12 months, [X] has been transiting between the Central Coast and Sydney for the purpose of these shared care arrangements between the parents, and again, one is left with an impression that perhaps the focus and insight in putting arrangements in to place in the past and to date has been upon parental suitability, parental rights and entitlements, rather than focusing upon what arrangement might be best or be the least disruptive and the most beneficial to this child. That is part of the arrangement that must be reviewed by the court today.
The two issues substantially are connected. Should [X] attend a school close to one or other parent's home, and each asserts it should be a school close to their home, as well as whether any time change needs to be made consequent to those arrangements.
Mr Katzer asserts that his employment is understanding and flexible and he is able to be somewhat accommodating to be available to collect and return [X] at different times, that he has to date had each Tuesday off work as a regular fixture in his calendar and that it is possible that that day could change to another day of the week on a regular basis. Mr Katzer has suggests that [X] will be collected and returned from school by someone known to him, and I can only infer from that this has been the arrangement in the past with day care and the like.
Ms Katzer, for her part, faces some substantial logistical problem in collecting and returning [X] if the time arrangements remain as they are. There is not only the practical arrangement but also the issue, which I suspect the parents have not focussed as clearly as they might have, as to whether those arrangements are indeed in [X]'s best interests, having regard to the fact he will be commencing school and will have substantial travel to be engaged in, no matter how well he may have settled into that to date.
Ms Katzer's hours of employment mean that she would need to utilise before and after school care if [X] were attending school in [H], whereas she would not if attending school close to her home.

Ms Katzer indicates that in the event that Mr Katzer was able to get [X] to and from school, she would have no opposition to the time arrangement continuing. Mr Katzer, of necessity, would appear to propose that he has no difficulty with the travel arrangements including, on Ms Katzer's evidence, before and after school care and time arrangements accordingly remaining as they are. I am not satisfied that is necessarily in [X]'s best interests nor, again, necessarily reflects a child focussed approach to the problem by each of these parents.
That is not to be overly critical of these parents. They have done a good job with the child. This case has no issues of neglect, abuse, domestic violence or other factors (which the court is all too familiar with) having to be juggled as part of determining what is in the child's best interests but certainly one is struck by the statements in the affidavit material that since a very early age there has been a perception, and one cannot feel that it is based upon any child development focus, of a shared care arrangement being the best thing. It is asserted it is the best thing for [X] at a young age but I doubt that that could possibly have been so.
In any event the dual tests that are applied, as I have indicated, are what is reasonable and practical in the circumstances and what is in [X]'s best interests.
I propose to deal, firstly, although authorities such as Goode& Goode (2006) FLC 93-286 and Marvel [2010] Fam CAFC 101 suggest that one should consider reasonable practicalities as part of the overall consideration of s.60CC which also contains the same provision. However, being mindful of the High Court's decision in MRR & GR [2010] HCA 4 that one must consider both separately and independently, in this case, I propose to consider reasonable practicality first.
In relation to the various factors set out in s.65DAA(5), they require me to consider the following.

(a) how far apart the parents live.

According to the NRMA calculator, the parents live about

61 kilometres apart. It is suggested that that is travel time of

59 minutes. There is nothing to indicate whether that is a guaranteed time, but one would assume not, or what traffic conditions are taken into account. It is clear that the period that parties would need to be travelling, whether from [O] to [H] or from [H] to [O], would be during what one is generally told is the peak hour, being travel between 8 and 9 am. Indeed, for Ms Katzer it would be travel earlier than that as she would need to travel to [H] to drop [X] to before school care and then return so that she was at work shortly after 9 am. For Mr Katzer it would involve having to leave home around 7.30 or 8 am to have [X] at school for the commencement of the school day.
That is an awful lot of travel for a young child in any respect, even though it may not be seen as being a great deal of travel for either of these parents, and the evidence suggests that it is travel that [X] is used to. Well, perhaps he should not have ever become used to that quantity of travel, but he has. The distance between the parties of itself does not preclude this being a reasonably practical and sustainable arrangement but it will impact on this child with is another of the factors considered both under s. 65DAA(5) and s. 60CC.

(b) the parents' current and future capacity to implement the arrangement.

There are some practical problems on Ms Katzer's part in implementing the arrangement if it involves travel to [H]. She will, as I have indicated, need to use before school care and that will have the consequence that [X], artificially, is out of a parent's care or indeed out of the care of any of the adults who are responsible for and seized of his day to day care. That is something of an issue.

(c) the parents' current and future capacity to communicate.

Notwithstanding the fact that the parties are before this court, their ability to communicate would not appear to be particularly impeded.
The parties have been able to jointly consider, negotiate and attend a number of schools for consideration, being [H] and [B] and the parties certainly have appeared, at least by late March of 2010, to have reached a meeting of minds as to which of the two proposed schools, noting both of them are close to the father's continuing home and were close to the mother's then place of employment, would be the preferable. The fact that this changed is a relevant consideration but certainly the fact the parties have been able to negotiate that arrangement suggests that their communication is not as fraught as their body language and presentation before me today might suggest.

(d) the impact of that arrangement on the child.

In this case I am faced with two proposals. One is that [X] attends school at [H] and that the time arrangement for equal shared care continue, the other is that [X] attends school at [E] and the time arrangement change so that [X] is spending the majority of his school time in his mother's care.
There are some difficulties with both proposals and both will have a potentially negative impact on [X]. I am not satisfied that equally shared care is sustainable and that indeed the only way to produce a prospectively sustainable and reasonably practical arrangement is for [X] to attend a school near a parent's home and for the time arrangements to change so that he is primarily in the care of a parent during the school. The degree of travel that this child would be required to undertake as well as, on one proposal, the time this child would be required to spend in day care or out of the care of either parent is, in my mind, more of a concern than any focus upon a parent's sense of entitlement.
It is explicable that a parent would not want to see a diminution in the time that they spend with the child, whether that is Ms Katzer or

Mr Katzer. However, it is to be remembered, as I now turn to consider s.60CC and the only primary consideration which applies under that section, that this court's job is not to apportion time between parents for the sake of it.
The primary considerations under s.60CC require that the court consider (a) the benefit of a child having a meaningful relationship with both the child's parents and (b) the need to protect the child from physical or psychological harm.
Thankfully, and as a credit to both of these parents, there is no issue whatsoever in reality or alleged regarding physical or psychological harm or exposure to any behaviour that is inappropriate or harmful. Accordingly one is left with the remaining primary consideration of [X] having a meaningful relationship with both parents.
Time is a function of a meaningful relationship and nothing more.

A meaningful relationship can in fact be undermined even though parents are having equal time due to a number of factors including but not limited to
a)conflict between parents,
b)lack of agreement or consensus between parents and consequent resentment, arguments or ongoing disputation,
c)the child not coping with the time arrangement which may be a function of developmental and age appropriate considerations or may arise, as could potentially be so in this case, from the child being required to be disassociated from familiar, stable arrangements in either parent's household for significant periods as is alluded to in Mr Katzer's evidence regarding the week about arrangement and [X]'s difficulties in emotionally coping with same or through his moving frequently between parents households during the week, particularly when he has commenced school.
One of the proposals that had been raised in this case had been for [X] to attend a school at a midpoint, not an equal midpoint but between the parents so as to provide some equity or parity in travel to each parent. But this court need not be concerned with burdens imposed upon parents, for indeed, parenting imposes burdens of itself.
It is to be remembered that this court reflects upon, enforces and holds sacred the rights of children, not of parents. The two are intertwined to some extent. If a parent is put into a position where they are overburdened or are unable to meet obligations which an arrangement imposes upon them, the arrangement will not be reasonably practical or sustainable, but likewise, to expose a parent to substantial travel is of less concern to the court than exposing a child to substantial travel.
Time spent with the child whilst travelling can be meaningful. The fact that the child is sitting in a car and can discuss and engage in conversation regarding the day’s activities is not a wasted opportunity and should not be seen purely as travel. It is part of engaging in a relationship. It also allows the child to see a parent’s commitment to transporting them to important events, whether it is school, sport or any other activity. Accordingly, the travel arrangements of themselves can have some impact upon the organic process of s.60CC considerations as well as to what contributes to forming and maintaining a meaningful relationship.
But I am conscious than an equal shared time arrangement between these parents, for a child whose parents’ households are at least an hour apart by car, is a burden which would have the potential to impact upon this child’s functioning at school, general happiness and importantly, as regards relevant considerations under the Family Law Act, [X]’s meaningful relationship with one or indeed both of his parents, as if he becomes fraught or overwhelmed with those arrangements, the constant changes, the difficulties that would arise on one proposal of regular and extended before and after school care, potentially periods of time out of the care of both parents whilst not at school, or simply the burden of travel, then that would not benefit this child in terms of his development or his relationship with either parent.
The additional considerations both stand alone and inform the primary consideration as to this child’s benefit from a meaningful relationship with both parents, and I am entirely satisfied that [X] can, has and will benefit from having a meaningful relationship with both of his parents.
As I have indicated, meaningful relationships are not a function of time. Clearly time is important. It is difficult to maintain a relationship, let alone a meaningful relationship, with a child if there is no time, but it is not a quantitative decision, but a qualitative decision. Time is a function of the quality of a relationship and not the converse.

A relationship can be fraught with difficulty, notwithstanding that a parent spends substantial time with a child in exactly the same way as a relationship can be fraught with difficulty by having too little or no time with a child.
Regrettably, and again I feel the focus of the parents’ negotiations in the past may well have been upon a quantitative assessment rather than qualitative, and considering all of the various factors that can impact upon a child’s relationship with a parent, few of which have any direct connection to the actual time arrangement that is in place.
It is trite to say that absence can make the heart grow fonder. It can also cause the heart to begin to forget or to feel hurt and depleted. I am satisfied that the relationship this child has expressed as having with both of his parents, being an excellent relationship, is not going to result in him forgetting either parent, nor is the gap in any period of time, whether it is equal time or any other arrangement, is going to be such as to cause this child undue stress and then missing, craving and feeling homesick for the other parent and the other parent’s household. That is perhaps something these parents should have and should in future bear in mind, that their child will love them, they will love him and that they can each contribute to his life without having an equality and absolute equal parity of time.
The additional considerations commence with a consideration of [X]’s views. I am urged in Mr Katzer’s case to accept that [X] has an expectation and a desire to attend the chosen school, which certainly between March and November of 2010 would appear to have been agreed and expected by the parents as the school this child would attend. But I cannot ignore the fact that certainly, on the mother’s evidence, on or about 7 November, she was advised of her new position. She asserts she advised Mr Katzer at that time. He denies that, but certainly by late December it was clear that Ms Katzer wished to negotiate arrangements with respect to school.
Whether [X] has an expectation of the school is not in doubt. He has attended a number of events at the school, orientations and the like, but to the extent that what one might describe as familiarity and expectation is then extended to express or be alleged to contain an expression of views, I do not accept that. In any event, this is a child of five and his views, as they stand at the moment, are consistent with his age and maturity. I have no reason to doubt that he is not an intelligent child of relative maturity for his age, but he is five. He no doubt still believes in the Easter Bunny and Santa Claus. He will be disabused of those notions in the not too distant future, whether by other people or through his own logical processes. But in any event, views of a five-year-old child are not going to be determinative of this decision.
The nature of the relationship of the child with each parent and with other persons, including Mr Katzer’s new partner, I have no reason to doubt, is excellent.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship, I have no doubt that each parent is perfectly willing and able to continue and facilitate a relationship and will do so. The likely effect of change I touched upon briefly, regarding s.65DAA, but more specifically under s.60CC, subs.(3), the requirement to consider the effect of change by absence from a parent or any other child or other person with whom he has been living.
If I accede to Ms Katzer’s proposal, that will increase separation between [X] and his father and his stepmother and his sibling, soon to be two siblings. If I accede to Mr Katzer’s proposal, that will not increase separation between [X] and his mother, although it will create practical and logistical and sustainability problems. Practical difficulty and expense has some relevance; less so with respect to expense, other than the cost of petrol and travelling; more so, the arrangements that will need to be put into place. [X] will need to be transported, if I accede to Mr Katzer’s application, at an early hour of the morning, so that he is placed in before school care, so that Ms Katzer can drive back exactly the same route she just traversed to her home area and her employment.
On Mr Katzer’s proposal, there was less practical difficulty and expense within his household, but I am focused on practical difficulty and expense for [X].
As regards the capacity of each parent to provide for [X]’s needs, including his emotional and intellectual needs, I have no doubt that both parents are focused upon what they consider to be best for [X] and are both capable of meeting his needs.
Maturity, sex, lifestyle and background does not have any great relevance other than that [X] is a child of five, accordingly relatively immature, even if age-appropriately mature and certainly needs the guidance, support and protection of both of his parents.
There is no suggestion that [X] is from an Aboriginal or Torres Strait Islander background.
I am satisfied that both parents demonstrate an entirely appropriate attitude towards their responsibilities and duties as parents, at least to the extent that it relates to his education and as indicated, the only criticism that I can find of either parent is certainly that the history of arrangements between these parents suggests a focus upon adult convenience, rather than necessarily arrangements that would best promote and meet [X]’s developmental needs from the time that the shared care arrangement was first put into place, his attachment and support and emotional security needs. Consequently it is of little surprise that there is a suggestion that some emotional difficulties were subsequently perceived.

There are no issues of family violence, nor family violence orders.
Whether it would be preferable to make orders that would least likely lead the future proceedings is sometimes seen as a simplistically vexed issue in interim proceedings, as clearly the matter must progress. However, there are two elements of that consideration which are relevant in this case. Firstly, the parties have not attended family dispute resolution with respect to the arrangements that I will order, or indeed to specifically address the issues that are the subject matter of the proceedings. The parties did attend family dispute resolution, I am told, the third set of family dispute resolution in three years, shortly before the proceedings were commenced, but these issues arose subsequently.
Accordingly, I propose to make an order for the parties to attend family dispute resolution, as I am required by s.60I to consider on each occasion, that the matter has come before the court, whether family dispute resolution would be appropriate, and in particular I am required, when there has been an exemption granted to attend family dispute resolution, to refer the parties pursuant to s.60R(10) to family dispute resolution once I have dealt with the interim issue.
Accordingly, that will occur and with a view to affording to the parties the opportunity to avoid future proceedings through negotiated agreement.
The other aspect of avoidance of future proceedings arises, as the legislation requires, that I make orders that are reasonably practicable and sustainable. If I make orders that impose an undue burden either upon [X] or his parents there is more potential for future disputation and consequently future proceedings.
Overall, one is left with the stark choice which neither party would appear to have addressed in their proposals but which is, at least, referred to to some extent - although perhaps improperly so as it would, on its face, be a breach of section 131 of the Evidence Act 1995 – in proposals put by Ms Katzer to resolve this issue.
It is suggested in Mr Katzer’s material at paragraph 47 that on 27 December 2010 an email was received by him from Ms Katzer which he says is the first notice he had as to any disputation regarding [X] attending [H] School but which proposes a number of changes to time arrangements to accommodate [X]’s need to attend school close to one parent’s home. That is not a position that Mr Katzer would appear to have accepted nor addressed in his material.
Ms Katzer, somewhat selflessly, would appear to have proposed that [X] spend his weekdays, or at least the majority of them, in one parent’s home and irrespective of which parent’s home that is although she clearly had a preference as to how that would play out.
I am satisfied for all the above reasons that irrespective of which school [X] is to attend that there needs to be a change to the time arrangement as I am not satisfied that the burden of travel, separation from one or both parents for periods of time during the week and the overall difficulties that would follow for [X] are in his best interests. I am also satisfied that [X]’s interests have not been fully or appropriately considered for whatever reason by his parents.
On balance I am satisfied that the time arrangement for [X] should be so that he spends the majority of the week with one parent and the majority of weekends with the other. That is not an ideal solution.
As s.65DAA makes clear, substantial and significant time, if one is not to order equal time – and to that extent, if it is not already apparent from these reasons, I make clear that I am not satisfied, having regard to the parties’ present dilemma, that equal time is appropriate, in [X]’s best interests nor reasonably practical – includes both weekends, weekdays and time that enables both parents to engage and participate in daily activities and activities of importance to [X] such as school.
That is not to suggest that by making orders which give the preponderance of weekday time to one parent and the majority of weekends to another does not allow and permit both parents to participate in school. It simply means there will be more of a travel burden on one parent than the other.
I had made clear to both parents that I do not propose to make a decision regarding the school [X] should attend by comparing the two schools. I am not in a position to do so nor do I have the evidence to do so. More importantly, I would have thought that the better approach for me to adopt is to determine, having regard to the practical and logistical difficulties that will arise, the best care arrangements for [X] and as a consequence school will follow thereafter. Having regard to all of the above I am satisfied that the following orders are the best that can be made to promote [X]’s best interests at this point in time.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Harman FM

Associate:

Date: 3 February 2011