Keach and Keach
[2008] FamCA 202
•31 March 2008
FAMILY COURT OF AUSTRALIA
| KEACH & KEACH | [2008] FamCA 202 |
| FAMILY LAW – CHILDREN – interim – time spent with |
| Family Law Act 1975 (Cth) s 60CC (2)(b), (3), (3)(j), (4), (4)(a); 61DA; 65DAA, (2), (3) |
| Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Keach |
| RESPONDENT: | Mrs Keach |
| FILE NUMBER: | SYF | 2181 | of | 2006 |
| DATE DELIVERED: | 31 March 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 March 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Barkus Edwards Doolan |
Orders
PENDING FURTHER ORDER
The mother and father shall each have equal shared parental responsibility for their children T born … November 2003 and R born … May 2005 (“the children”).
Pending further order the mother and father are to each individually have sole responsibility for making decisions concerning the children’s day to day care, welfare and development during periods when the children are in their care respectively.
Pending further order, the children live with the father as follows:
3.1.During the gazetted school term periods:
3.1.1.From the date of these orders until the end of school Term 2, 2008:
3.1.1.1.the father shall collect the children from after preschool each Wednesday until 6pm the following Thursday;
3.1.1.2.From each Sunday 9am until 6pm the following Monday.
3.1.2.On a fortnightly cycle from the commencement of Term 3, 2008:
3.1.2.1.On the first week of a fortnightly cycle, the father shall collect the children from day care/preschool each Wednesday the mother shall collect them at 6pm on Friday;
3.1.2.2.On the second week of a fortnightly cycle, the father shall collect the children from day care/preschool on Thursday and the father shall return the children to the mother at 6pm on Saturday.
3.2.During the gazetted school Christmas school holidays:
3.2.1.In years ending with an odd number, the children shall be in the care of the father from midday 20 December to midday 27 December and in the care of the mother from midday 27 December to midday 3 January with the then remaining number of days being equally divided between the parties;
3.2.2.In years ending with an even number, the children shall be in the care of the mother from midday 20 December to midday 27 December and in the care of the father from midday 27 December to midday 3 January, with the then remaining number of days being equally divided between the parties.
3.3.During the other gazetted school holiday periods:
3.3.1.For three consecutive days and nights during school holidays at the end of Term 2, 2008;
3.3.2.For one half of each such period commencing the end of Term 3, 2008.
In the event the father is away the Sydney metropolitan area so that the father is unable to spend time with the children, the children will remain with their mother.
The children live with the mother save for the time provided for in order 3 herein.
Notwithstanding any other orders, each of the parents have the children for five hours on each of the children’s birthdays.
Notwithstanding any other arrangement, each parent have both the children with them for not less than five hours on the parent’s respective birthdays.
Notwithstanding any or other arrangement, that the father have the children from 9.00am to 6.00pm on Father’s Day.
Notwithstanding any other arrangement, that the mother have the children from 9.00am to 6.00pm on Mother’s Day.
Other than at times when the children are to be collected by the father from preschool, the mother deliver the children to the father’s home at the commencement of the children’s time with the father and the father return the children to the mother’s home at the conclusion of the children’s time with him.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2181 of 2006
| Mr Keach |
Applicant
And
| Mrs Keach |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
I am asked to make an interim determination of what time T (aged 4 years and 4 months) and R (2 years and 10 months) should spend with each of their parents.
This matter has been docketed for me to determine all outstanding matters on a final basis. It appears that the parenting issues are interconnected with the outstanding applications for alteration of property interests given that the result of the latter proceedings may have a bearing on where the mother can live. The matter is therefore not at this time ready to be set down for a final hearing in relation to both aspects of the dispute between the parties.
APPLICATIONS
Father’s application
The father seeks orders as set out in his Amended Application in a Case filed 21 January 2008. He seeks orders for equal shared parental responsibility with the mother. On a fortnightly cycle he wants the children to spend time with him each Wednesday from after day care until 6pm on Friday (that is overnight Wednesday and Thursday nights in the first week of a fortnightly cycle) and in the second week of a fortnightly cycle the father wants the children with him from after day care on Wednesday until 6pm on Saturday (that is, Wednesday, Thursday and Friday nights in the second week). Overall during normal school term the father is seeking the children to be with him for five nights a fortnight.
In addition he is seeking half of each gazetted school holiday period for terms 1, 2 and 3 and that is notwithstanding the fact that the children are not yet going to school. In Christmas holiday periods he seeks an arrangement where the children would spend half of that time with him.
The father also wants the contact with the children for five hours on each of the children’s birthdays and for five hours on the respective birthdays of each of the parents. The mother does not deal with that matter in her response.
Mother’s application
The mother in an Amended Response filed in court on 28 March 2008 also seeks an order for equal shared parental responsibility.
Her proposal for the children’s time with their father is that they would spend each Wednesday at night with him from after preschool to be returned at 6pm the following day. She proposes that they spend 9am to 6pm with him each Sunday and for three hours each Monday. She proposes that from 18 May 2008 that the Sunday period be extended overnight until the following Monday morning and that from 15 November 2008, in lieu of each Sunday overnight, the children would spend each alternate weekend from 9am Saturday until 10am Monday with their father.
The mother wants the children with her between 20 December 2008 and 27 December 2008 (this seems consistent with the father’s application).
The mother concedes time with the father on Father’s Day and seeks time with the children on Mother’s Day. This also seems consistent with the father’s application.
The mother proposes that she deliver the children to the father’s home at the commencement of the children’s time with the father (apart from when he would be picking them up from preschool) and that the father return the children to the mother’s home at the conclusion of their time with the father. The father agrees to these travel arrangements even though on his proposal it would mean that he would be doing all the travel during school time, given that each pickup is from preschool during school term.
DOCUMENTS READ
I have read the father’s affidavit sworn 4 February 2008, the mother’s affidavits sworn 10 March 2008 and two sworn 27 March 2008 (one of 9 paragraphs, the other of 14 paragraphs), and the report of Ms B dated 20 February 2008.
CHRONOLOGY
The following chronology has been developed from the affidavits filed by the parties. Some events are uncontroversial, while others are contested. Within the confines of the limited nature of this hearing, inconsistencies in conflicting versions cannot be tested and neither party has had a full opportunity to respond to what the other party has said in their affidavits.
Date
Event
xx.07.1968
Father’s date of birth (39)
xx.06.1977
Mother’s date of birth (30)
1997
Cohabitation commences
xx.11.1999
Date of marriage
xx.11.2003
Date of birth first child T (4 4/12)
xx.05.2005
Date of birth second child R (2 10/12)
27.12.2005
Date of separation. The mother returns to Sydney but leaves the children in the Hunter Valley.
06.01.2006
The children return to Sydney and the father sees them.
10.01.2006
T’s first day at childcare. The parties attend together.
11.01.2006 to 12.01.2006
The children stay with the father overnight.
14.01.2006
Father sees the children.
19.01.2006 to 20.01.2006
The children stay with the father overnight.
21.01.2006
Father sees the children.
22.01.2006
While the father has the children the mother, against the father’s wishes, comes to the home to collect certain chattels. An incident occurs about which the parties are in dispute. Thereafter the mother refuses to allow the children to spend time with the father.
01.02.2006
Father says the mother’s AVO application is dismissed after a defended hearing at North Sydney Local Court. Mother says this was a mention date where the matter was listed for hearing.
02.02.2006
The father commences the current proceedings. The children recommenced to see their father during the day only.
04.04.2006
The father’s interim parenting application is “not reached”.
April 2006
The father discontinues counselling with Ms T.
16.05.2006
The father’s interim parenting application is heard by Judicial Registrar Loughnan.
31.05.2006
Mother says father requests communication be by email or text message.
07.06.2006
The father files an application seeking to review the Judicial Registrar’s decision.
07.07.2006
Cohen J. hears the Review Application.
12.07.2006
Cohen J. makes orders and delivers his Judgment.
28.07.2006
The father appeals to the Full Court
September 2006
Mother says father unilaterally arranges swimming lessons for T.
September/October 2007
The mother says the father was overseas for four weeks.
31.10.2006
The Full Court hears the father’s appeal.
09.11.2006
Mother says father screams at T at swimming lesson.
07.12.2006
Mother says T throws tantrum when being delivered to father and that father abuses her.
July 2007
Mother says T draws family picture without including father.
August/September 2007
Mother says T starts seeing speech pathologist.
December 2007
Mother says father angry at preschool concert and leaves without the children.
21.12.2007
The Full Court delivers its Judgment.
January 2008
R commences at preschool two days a week.
16.01.2008
The mother agrees to Ms A being the therapist.
29.01.2008
Parties consult Ms A.
05.02.2008
The parties are interviewed for the Family Report.
06.02.2008
First overnight contact visit between the father and the children since incident of 22 January 2006.
02.03.2008
Mother says there is an incident when children were distressed.
25.03.2008
Parties meet Ms A (second visit).
25.03.2008
The mother says she first becomes aware that the father is going overseas in August this year.
STATUTORY CONSIDERATIONS
In deciding what parenting orders to make for the children on an interim basis, I must regard their best interests as my paramount consideration.
In determining those best interests I must primarily consider:-
14.1.The benefit to the children of a meaningful relationship with both of their parents; and
14.2.The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There is no doubt that on either parent’s case the children benefit from having a meaningful relationship with both their parents.
Counsel for the father submits the children have not been exposed to abuse, neglect or family violence and there is no need to protect them from such. There is nothing in the mother’s affidavits that gives any significant concern that the children have been exposed to abuse, neglect or family violence which leads to a need to protect the children from physical or psychological harm. Counsel for the mother refers to s.60CC(3)(j) Family Law Act 1975 (“FLA”) but makes no submission that s.60CC(2)(b) FLA is a matter of relevance in this interim hearing.
The additional considerations I need to address are contained in s.60CC(3), (4) and (4)(a)) FLA.
The children are both of a tender age. There is no significant weight that I can place on any view that they have expressed.
On the material it appears that the children have a close and loving relationship with both their parents.
At paragraph 27 of her report, Ms B says the mother said “that while she recognises that overnight time with the children is important to [the father], she is “not 100% certain why”. She questions the father’s motivation and suggested to the family consultant that he may be motivated by a feeling that she had wronged him by her leaving the marriage.
The mother is clearly concerned that the children need to have a base “where they live from”, that is, the mother is of the view that it is in the children’s best interest for them to primarily live in one house. The mother told the family consultant that she didn’t think equal shared parental responsibility was practically achievable due to the difficult parental relationship that currently exists (paragraph 32 of the family report). Notwithstanding that, her amended application now seeks such an order.
It emerges from the family report (at paragraph 33) the mother was having difficulty actually formulating and articulating the proposal she thought was in the children’s best interests. The mother seemed very ambivalent about her position when she saw the family consultant.
Both parties acknowledged the possible impact of the conflict between the parties arising from this litigation and the current state of their personal relationship upon T. The mother talked about “compartmentalisation” and T’s inability to talk freely about one parent when in the care of the other parent. It is reasonably clear that T is suffering some stress at the moment from the level of parental conflict. The family consultant opined that there was some suggestion, despite T’s positive attachment to both his parents, he may feel somewhat closer to this mother than to his father and that is consistent with a pattern of parenting that he has experienced since separation. Likewise R, whilst she saw her father as a “safe” person, tendered to orientate herself more towards her mother. The family consultant commented that that would appear to be consistent with her age and the pattern of parenting she had experienced prior to and since separation. R was unwell on the day of the interviews and the family consultant commented that the father was able to effectively comfort and settle R when the mother was being interviewed.
Counsel for the mother did however seek to make comment about the nature of the children’s relationship with both their parents. At paragraph 35 of her report Ms B comments that T presented as a quiet, softly spoken young boy. She commented at paragraph 36 that T did not look upset or anxious at the possibility that his parents might go to lunch together.
The mother reported to the family consultant that T suffers from nightmares and consequently sleeps with the mother in bed every night. Both parents agree that T had developed a stutter and that it had been in existence for 6 – 8 months prior to the date of the interviews which were held in February 2008.
The mother in her main affidavit actually asserts that T’s stuttering stopped when the father was absent overseas for four weeks in September/October 2007 but the stuttering resumed when the father returned from holidays. I wasn’t clear as to what inference Counsel for the mother was asking me to draw assuming I could accept the mother’s version in the context of an interim hearing. The submission presumably was aimed at demonstrating that if T had long periods of uninterrupted time with his mother without the stress of moving between his parents then T is more settled (as demonstrated by the symptom of stuttering). I am unable in the confines of this hearing to draw any significant inference from the mother’s evidence at paragraph 71 of her main affidavit.
It is the father’s case that the mother has demonstrated an unwillingness and inability to encourage a close and continuing relationship with the father and he relies on the following matters:-
27.1.After overnight time with the father which had been put in place on two occasions after the separation the mother unilaterally stopped that time after the incident on 22 January 2006 that the mother refers to in her main affidavit.
27.2.An assertion that the mother has been slow in conceding that it would be in the children’s best interest to spend time with their father overnight. The father annexes to his affidavit correspondence from his current solicitors commencing in September 2007 requesting an extension of overnight time. The father complains that the mother did not respond in a timely manner to his invitation for further counselling to attempt to discuss overnight time. The mother did not agree to any overnight time until 6 February 2008.
27.3.The amended application the mother filed in court on 28 March 2008 now acknowledges that the children can stay with their father overnight and for more than one consecutive overnight stay after November 2008.
The mother’s response is that she agreed that up to the initial meeting between the father and her with Ms T in March 2006 she had her solicitors send the letter which is attached to the father’s affidavit (annexure A). She sought that pending further order an order be made whereby the children would have contact with their father from 3pm Wednesday afternoon to 3pm the following Thursday afternoon; from 9am until 4pm each Sunday and at other times the parties might agree. It is the mother’s evidence that the father reacted to the receipt of that letter by telling the mother that she should not have got the lawyers involved and that the father responded to that letter by filing an interim application which was listed for 4 April 2006. The father’s interim application sought an immediate introduction of two consecutive overnight visits each week and one half of the school holidays.
The matter came before the Judicial Registrar on 16 May 2006 and an order was made after a contested hearing that the children spend three day times with their father. The father reviewed that application and the matter came before Justice Cohen on 7 July 2006.
At that time the mother alleges that she made a second offer to the father - that being that the children commence spending one overnight period per each week with the father immediately and that this increase to two overnights after six months.
That offer was rejected and as a result of the orders by Cohen J which confirmed the Judicial Registrar’s orders and the delay in the matter being finalised by the Full Court, the effect was that the children did not have the benefit of any overnight time with the father from 22 January 2006 until 6 February 2008.
The mother further says that the complaint that she did not respond in a timely manner to the invitation to go to further counselling is not true given that her position was that she was prepared to go back and speak to Ms T (see letter from Karras Partners of 26 October 2007). By early November 2007 the mother was aware that the father thought that Ms T was aligned with the mother’s emotional needs and a new therapist was required. Ms A was one of the suggested therapists. It wasn’t until 16 January 2008 that the mother agreed to Ms A being appointed. The impression one gains from that negotiation is that the mother certainly wasn’t volunteering regarding the immediate introduction of overnight time in September and that the agreement from the mother to involve herself in therapeutic intervention was slower than it could have been.
I am unaware given that the mother filed in court the affidavit which she asserted she made a expanded offer for overnight contact on 7 July 2006, whether the husband accepts that offer was made. It seems clear however that the father passed up the opportunity of accepting the mother’s agreement to commencement of overnight time prior to him commencing interim proceedings because in his view at that time it was not extensive enough. Essentially the father criticises the mother for running a no overnight contact case against him before the Judicial Registrar in circumstances where she had proposed an arrangement, where it was in her view, in the children’s best interests for them to have some overnight time with their father. In an affidavit filed in court on 28 March 2008 the mother says she had concerns about the children being introduced to overnight time with their father immediately because they were so young and she thought that they would not settle into that arrangement. Nonetheless before the litigation commenced the mother made an offer for overnight time in order to resolve the matter. In the circumstances I don’t believe any adverse comment could be made about the mother running a no overnight time case before the Judicial Registrar. Certainly the Judicial Registrar and subsequently Justice Cohen both agreed with the mother’s position as presented to the Court at that time.
The fact that the mother has been unable to bring herself to offer overnight time for a period of almost two years speaks more about the tension between the parties, particularly in regard to this litigation which also involves outstanding issues of property dispute, and the difficulties of the parties communicating with one another.
In respect of the likely effect of any change in the current circumstances, the likely effect on children of young age from separation from their primary care giver needs careful consideration. The father submits that his proposal is measured and well thought out and is sensitive to the ages of the children. The mother submits that there has been and is a real likelihood of the children been affected by the change of the move to overnight time with their father and that that change needs to be hastened slowly. The family consultant at paragraph 39 of her report records that T did talk to her about feeling scared of monsters at night time, this is why he is currently sleeping in mum’s bed. The family consultant comments that self evidently this would be an added reason for T to need to feel secure when in either home and that it is something that needs to be addressed sensitively so as not to create an issue for him at night that he is not otherwise there. The mother points to her evidence in paragraph 92, 96, 102 and 103 of her main affidavit as evidence of the children being more secured and clingy since the introduction of overnight time.
Paragraph 46 of the family report suggests that while R sees her father as a source of security, nevertheless the time that she spends with her father should be gradually increased so as not to create in her some anxiety that may negatively impact on the ongoing development of the attachment relationship with each parent. Because of those matters, counsel for the father submits that some staggering of the extension of overnight times for the children with their father is indicated.
Apart from anxiety caused by immediate separation from the mother on an overnight basis or on an extended basis, the mother also raises the spectre of the father regularly exercising time with the children. The mother’s evidence is that in 2006 and 2007 the father has gone overseas for four weeks each year. She says in a conversation she had with him on 25 March 2008 that the father told the mother he was going away this year in August but that he did not know how long he was going away for and that when the mother pressed him about it he did not respond. Counsel for the mother submits that an arrangement should not be put in place that would, on the father’s application, have the children being with him five nights a fortnight in circumstances where that new arrangement would then be interrupted for a period of time (the mother asserts a similar period to the period he was away last year of four weeks). The mother submits that her proposal is more staged and progressive and takes into account the possibility the father will be absent for a significant period in August. The father has not responded to what the mother has said given that this material is in an affidavit filed in court on the day. He did not however through his counsel assert that he wasn’t going away in August for the period claimed.
Neither party has raised as an issue any practical difficulty or expense associated with moving the children from one household to another.
Counsel for the father refers to matters raised by the mother, which are currently untested, that go to the father’s parenting capacity. Counsel acknowledges that those matters cannot be tested within the confines of this hearing but submits that although factual findings cannot be made, the allegations would cause me to pause before agreeing to the interim proposals of the father. However, that submission has to be balanced against the fact that since the orders of Loughnan JR were made on 16 May 2006 the children have been spending three day time periods with their father each week. There is no significant attack by the mother on his capacity to care for the children during those times.
Each party has demonstrated that they are a responsible parent.
The mother raises some matters where she says that the father has been violent or at least angry. The mother asserts that the father’s attitude and behaviour towards her over the past two years has been “openly hostile” and “aggressive”. This includes her saying that the father swore and yelled at her and made “snippy” comments, frequently threatening her with court action, often in front of the children. These allegations are denied by the father and I am unable in the confines of this limited hearing to say which version is accurate. Again, counsel for the mother does not assert that I could make any concluded findings in the ambit of an interim hearing. The father does assert in his affidavit that the facts about what happened on 22 January 2006 were tested in the context of a defended AVO proceeding before a Magistrate and that the complaint was dismissed. The mother in her affidavit in response seems to take issue as to the date upon which that happened but not the fact that it did happen. Even on the mother’s version of what happened on 25 January 2006 there is no systemic history of the domestic violence alleged by the mother. The incident took place at the time of separation when the mother came to the matrimonial home to remove items from the home.
Ms B however at paragraph 31 of her report notes that although the mother “does not doubt that the father loves them” and clarifies that she has no concerns for their physical safety when they are in their father’s care, the mother expressed some concern about the possible negative impact of the father’s parenting style on the children’s emotional wellbeing. These concerns about emotional insensitivity go to the mother’s perception about a lack of tolerance displayed by the father when dealing with certain situations involving T, and falls short of family violence.
There is no family violence order. The mother says AVO proceedings were initiated by police consequent upon an incident on 22 January 2006. As I have said, the mother does not seem to put in issue that these proceedings were dismissed after a defended hearing but disputes the date upon which that happened.
Consideration must also e given to s.60CC(4)(a) FLA. It seems that the parties have engaged with one another when talking about major long term decisions in relation to the children.
The father complains however that the mother has not facilitated him spending time with the children on an overnight basis.
Material indicates that the father has met his financial obligations to maintain the children.
EQUAL SHARED PARENTAL RESPONSIBILITY
The father applies for an order for equal shared parental responsibility on an interim basis. The mother responds by applying for the same order. Section 61DA FLA creates the presumption that when making a parenting order the court must apply a presumption that it is in the best interests of the children to have equal shared parental responsibility.
In those circumstances it is appropriate I make such an order.
Section 65DAA FLA states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility then the court must consider:-
49.1.Whether or not it is in the best interests of the children to spend equal time with each of their parents.
49.2.Consider whether or not it is reasonably practical to spend equal time with each of their parents; and
49.3.if the answer to both of those questions is positive then to consider (and the Full Court in Goode (2006) FLC 93-286) has said that means affirmatively consider) making such an order.
Neither party is suggesting to the court that it is in the best interests of the children for them at this time and on an interim basis to spend equal time with both of their parents. I agree with the position taken by both parents in that regard and I don’t consider that it is in the children’s best interests at this time to spend equal time with each of their parents.
Under s.65DAA(2) FLA I need to move on to consider whether it is in these children’s best interests to spend substantial and significant time with each of their parents and to consider whether or not it is reasonably practical that they do so.
The definition of substantial and significant time contained in s.65DAA(3) FLA would mean that the children spent time with each parent that fell on weekdays and weekends and on holidays and allowed a parent to be involved in the child’s daily routine on occasions and events of special significance.
The mother’s proposal filed 28 March 2008 falls within the definition of substantial and significant time. Her proposal allows the children one overnight with their father per week initially moving to two nights a week from 18 May 2008. Between 18 May and 15 November 2008 the father will have four nights a fortnight with the children but none of them would be consecutive. After 15 November 2008, two of those nights will be consecutive nights.
The father’s proposal is obviously more substantial and significant time than the time proposed by the mother.
In considering substantial and significant time I am required by s.65DAA FLA to consider whether or not the father’s proposal is reasonably practicable and in doing so I must have regard to a number of factors.
First, there is no suggestion in the material that the distance the parties live apart causes any problem in facilitating arrangements for the children to be moved from one parent to another.
The next matter I have to consider is the capacity of the parties to implement arrangements. Again there is nothing in the material that would indicate that the parents have not been able to implement arrangements that they have reached. The mother has complained about the father not being flexible in relation to arrangements whilst at the same time making the point that she is very flexible when the father wants times changed. One of the affidavits that she filed in court on 28 March 2008 detailed her version of arrangements of the children’s time with their father in the last seven weeks (since 6 February 2008). The history set out by the mother indicates that on nine occasions in the last seven weeks the father has either requested a change in the time he is seeing the children or has cancelled times that he has been due to see the children. Again I don’t have the father’s version of this history. That evidence however does not demonstrate an inability between the parents to implement arrangements.
There does seem to be a level of difficulty in the communication taking place between the parties. Communication is apparently by way of email or text message, although there is some indication that the parties do exchange occasional words at times when they see one another for contact changeover. I have no doubt that the current litigation is an impediment to the parties being able to move forward in working to develop skills so that they can operate on a more sustainable basis in co-parenting the children. There are encouraging signs however. The parties have made progress after the therapeutic intervention of Ms A. In addition, the mother seems to be adopting a fairly flexible attitude to the pressures of the husband’s work schedule.
The next matter that I need to think about in relation to whether or not substantial and significant time proposed by the father is reasonably practical is the impact that the arrangement would have on the children. I have already discussed the effect of change on the children. The mother has given evidence about disturbing behaviour upon the introduction of overnight time. In her most recent affidavit however, she has not commented upon those matters and in the application counsel submits that I should not draw any inference from that given the limited nature of these proceedings. In other words, I cannot draw any inference one way or the other as to whether or not the children, between 20 March 2008 and 27 March 2008, have become more settled with the overnight time arrangement. However, the mother has, in the application that she has filed in court on 28 March 2008, asked the court to implement from May 2008, a regime where the children spend four nights a fortnight with their father. It seems therefore that I can assume that at least to that level the mother is content that there is not going to be an adverse impact on the children of the arrangement that she proposes.
CONCLUSION
Ultimately, I have to make a decision as to what is in the best interests of the children in the short term and pending further order, by balancing and weighing the matters to which I have referred.
At paragraph 21 of the family report, the father expresses the desire that he wants to be actively involved in the daily lives of the children without the constraint of having to return them at 6pm. The father asserts that his work commitments are “very flexible” and wouldn’t impact upon his ability to spend time with the children. The mother seeks to put that in issue but there has been no indication in the short time the father has been having the children overnight to date that there has actually been a problem with him being there or organising alternate care if he is called out unexpectedly.
The mother has reported that since she has agreed for the children to stay overnight, the father has become civil and what she now describes as “overly pleasant” in his interactions with her. She questions the sincerity and sustainability of this new attitude. The sincerity and sustainability will be put to the test while this matter awaits a final determination.
The children have obviously benefited from the positive experiences they have had with both parents. T has been exposed to his parent’s differences of opinion. The family consultant opines that his stutter may be a physical response to the stress generated by the conflict. It would be really beneficial for the children if their parents could work on their parenting skills and their ability to interact with one another as parents to a sufficient degree to enable T to get on with better focusing on the issues that he should be focusing on at his age. The family consultant did not believe that there was any problem with R coping with spending nights away.
Balanced against this consideration is weight that I have to give to the matters raised by the mother arising out of the age of the children, T’s sensitive nature, the reports of some regression by the mother upon the implementation of an overnight regime, the current level of communication between the parties, the tension that currently still exists between the parties, the possibility that the father will be absent for four weeks in August and the history already given by the mother of the father’s failure to meet agreed arrangements for time with the children in the last seven weeks.
I conclude that it is in the children’s best interests to spend substantial and significant time with their father, which has a more progressive timetable for implementation than proposed by the mother but hastens more slowly than proposed by the father. If the father is away from Sydney during times when the children are to be with him the children are to stay with their mother unless the father is holidaying away from Sydney with the children.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date: 31.3.2008
Key Legal Topics
Areas of Law
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Family Law
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