Kelly & Leigh

FAMILY COURT OF AUSTRALIA

KELLY & LEIGH

[2007] FamCA 271

FAMILY LAW - CHILDREN - Child related proceedings – With whom a child lives - Best interests of child – Agreement as to all issues except the time the child lives with parents during school week – Consideration of equal time or substantial and significant time.

APPLICANT:

Ms Kelly

RESPONDENT:

Mr Leigh

FILE NUMBER:

ADF

2828

2003

DATE DELIVERED:

29 March 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Benjamin J

HEARING DATE:

27 & 28 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Pickhaver.

SOLICITOR FOR THE APPLICANT:

Legal Services Commission

COUNSEL FOR THE RESPONDENT:

Mr Cole

SOLICITOR FOR THE RESPONDENT:

R J Cole & Partners

Orders made by consent

THAT the mother and the father have equal shared parental responsibility for their son born in July 2001 (“the child”).
THAT the child live with the mother and father as set out in these orders (being the consent orders 1 to 18 and the further orders made after a contested hearing) or as otherwise agreed in writing between the parties.
THAT the child live with the mother for the first half of the short term school holiday periods in odd numbered years and the second half of the short term school holiday periods in even numbered years. Changeover to take place at 5.30pm on the middle Saturday of such school holiday periods. If Easter is not in a short term holiday period then the child shall live with the parent with whom he would otherwise reside pursuant to these Orders, except for 9am to 6pm Easter Sunday when the child shall reside with the other parent.
THAT the child shall:-
(a)    live with the mother from the end of the school year in 2007 until 3.00pm on Christmas Day and then shall live with the father on 3.00pm Christmas Day until 10.00am on 1 January 2008 and thereafter spend one week with the mother, then one week with the father, alternating until school classes resume. That arrangement shall continue each alternate year from 2007.
(b)   live with the father from the end the school year in 2008 until 3.00pm on Christmas Day and shall live with the mother from 3.00pm on Christmas Day until 10.00am on 1 January 2009 and thereafter spend one week with the father, then one week with the mother alternating until school classes resume. That arrangement shall continue each alternate year from 2008.
(c)   In the event that the final period of alternating weeks provided in this order means that the child spends two days or less with either parent at the end of the Christmas/New Year holiday period under this order, then those days will be included in the preceding week with the other parent, making that final period run for either 8 or 9 days.
THAT the time that the child lives the mother pursuant to Orders 19 and 20 hereof shall commence on the second week after the commencement of school term if the child was to live with the mother pursuant to these Orders the last week of the preceding school holiday period and shall commence on the first week after the commencement of school term if the child was to live with the father pursuant to these Orders during the last week of the preceding school holiday period.
THAT if the child is living with the father on the Mother’s Day weekend, such time will conclude at 6.00pm on the Saturday preceding Mother’s Day and the child will live with the mother from that time until the commencement of school the following Monday or Tuesday if Monday is a public holiday or pupil free day.
THAT if the child is living with the mother on the Father’s Day weekend, such time will conclude at 6.00pm on the Saturday preceding Father’s Day and the child will live with the father from that time until the commencement of school the following Monday or Tuesday if Monday is a public holiday or pupil free day.
THAT in terms of arrangements to collect and deliver the child for changeover of living times between the parties, such changeover shall, wherever possible, take place before and after school at the child’s school. However, if the changeover takes place other than at school then if the child is living with the father the mother shall be responsible to collect the child from the father’s home. If the child is living with the mother then the father shall arrange to collect the child from the mother’s home.
THAT in respect of each changeover the party with whom the child is then living shall ensure that the child is ready for such changeover at the correct time and the collecting parent shall ensure that he or she arrives on time for collection of the child.
THAT both parties shall keep the other advised, in a timely fashion, of any medical or other issue pertaining to the child including details of any medical, dental, psychological or psychiatric treatment undertaken by the child.
THAT both parties shall ensure that all school records shall note both the mother and father are persons with whom the school authorities may liaise from time to time regarding the child.
THAT both parties shall be entitled to attend school functions such as swimming carnivals, sports carnivals, plays, Easter parades and the like.
THAT in the case of any medical emergency the parent who is aware of such emergency shall as soon as is reasonably practicable contact and notify the other parent regarding the child’s medical circumstances.
THAT neither party shall denigrate nor permit any other person to denigrate the other party, the other party’s partner, sibling or parent in the presence or hearing of the child.
THAT each parent shall keep the other informed as to such parent’s residential address and telephone numbers where the parent may be contacted.
THAT both parents are restrained from changing the school which the child attends without the written consent of the other party or further order of a court exercising jurisdiction under the Family Law Act 1975.
THAT the parties shall maintain a communication book setting out issues with regard to the child and that such communication book be handed over at each changeover and that the parties set out in that communication book any issues regarding the child’s health, welfare or behaviour.
THAT the mother and father contact Relationships Australia (or similar organisation) within seven days of the date of this order and each make arrangements to participate in the Children’s Contact Program or similar and do all things required to facilitate and participate in such a program and ensure that such party has completed such program within twelve months form the date of these orders.
Orders made after contested hearing.
THAT the child live with the mother from after school Thursday until the commencement of school the following Wednesday each alternate week during school term for the school years 2007 and 2008, such arrangement to commence in term 2 of the South Australian State School Term and in the week provided in Order 5 above. The child shall otherwise live with the father during school term weeks.
THAT the child live with the mother from after school Friday until the commencement of school the following Friday from the 2009 school year. The child shall otherwise live with the father during school term weeks.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2828 of 2003

Ms Kelly

Applicant

and

Mr Leigh

Respondent

REASONS FOR JUDGMENT

These are proceedings between the mother and the father in respect of parenting arrangements with regard to their child, a son born in July 2001 (“[the child]”).
The mother seeks orders as set out in her outline of case document. The father seeks orders as set out in his outline of case document.
The parties were in agreement as to orders 1 to 18 which are set out above in these reasons. These orders relate to:-
§the parents having equal shared responsibility for the child;
§the child spending one half of his school holidays with each of the parents;
§the child spending each alternate weekend during school term with each of the parents;
§that the collection and return of the child should take place, where possible, at and from his school and if not the parent collecting him will be responsible for transportation and collection;
§that the parenting orders should reflect that if the child is with one parent at the end of a school holiday period the time then he lives with the other parent after school commences;
§that there needs to be a communication book;
§that the parties each individually attend a parents in contact course;
§that both of the parties should be able to attend the child’s school functions;
§that the child should remain in his present school unless there is an agreement between the parties to change his school;
§that the orders should be live with/live orders.
I find that on the evidence and having regard to all of the factors under s60CC of the Family Law Act 1975 this consent approach is in the best interest of the child. Accordingly I will make those consent orders.
The remaining issue between the parties is the amount of time the child spends with each of the parents during the school term week. The mother seeks orders that the child live with her on a week about basis. Alternatively she seeks orders that the child live with her in week 1 and each alternate week thereafter from the conclusion of school on Thursday until the commencement of school on Monday or commencement of school Tuesday in the event that Monday is a public holiday or pupil free day, plus in week two from the conclusion of school Wednesday until the commencement of school Friday[1]. This alternative proposal would mean that the child would live with the mother six nights per fortnight. Her submissions in regard to the alternative proposal were somewhat guarded.
[1] This being the recommendation of the Family Reporter.
The father seeks orders that the child live with the mother from after school Thursday until the commencement of school Monday (or presumably Tuesday if Monday is a public holiday or student free day) making a total of generally four nights per fortnight, being three during the weekend and one school night.
Background
The father is aged twenty nine and is in good health. He is not engaged in paid employment but gives evidence, which the court accepts, that he is training to go into employment as either a labourer or in the computer industry.
The mother is aged twenty three and is in good health. She has the care of the child and a baby less than 12 months old. The mother proposes to resume some paid work in the medium term future.
The child is aged five and will have his sixth birthday in July 2007. He is presently at school and will commence year 1 in the South Australian education system at the commencement of 2008 and his primary education will continue from then for a period of seven years.
The parties have not cohabited except for a brief period in 2003. They separated in about August 2003 and the mother was the child’s primary carer until October 2003.
The father became the primary carer of the child in about October 2003. There is an issue as to the circumstances surrounding this change. In the context of the narrow dispute which the court is to determine there is no forensic reason to make a finding about this issue.
On 5 January 2004 a consent order was made that the child live with the father and have contact with the mother each alternate weekend from 4.00pm Thursday until 10.00am the following Monday. This order was made at a time when the mother was unrepresented and she raises an issue as to the validity of her consent in that regard. In the context of this narrow issue in dispute there is no need to make a finding on this fact.
Up to March 2005 the parties were living in homes close to each other. At that time the father moved to M which was some half an hour to forty minutes travel distance from the mother’s home, although travel from the one area to the other was serviced by direct public transport. This change of residence and the next change of residence were not done with the mother’s consent, the mother says there was no communication, and the father said he informed the mother in advance. In December 2005 the father moved to H which was about the same distance of travel from the mother’s residence but there was and is no direct public transport service between the two homes.
In May 2005 the mother commenced proceedings for an order for shared residence of the child.
In 2005 the mother fell pregnant and in May 2006 the mother’s second child, E was born. The mother has the primary care of E.
In October 2006 the father enrolled the child in F Primary School (near the father’s home at H) without discussing the enrolment with the mother. There is an issue as to whether he informed her. The parties had previously discussed enrolling the child in another local school.
Neither of the parties concede that they are living in a relationship with another person although each has someone with whom they share time although there was an issue as to the nature of the relationship. I have made findings on this issue in these reasons. Neither party called their significant other persons.
The relevant legal principles pursuant to the Family Law Act
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.

19.The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[2];
[2] s 60B(1) Family Law Act 1975 (Cth).
(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

20. The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[3]:
[3] s 60B(2) Family Law Act 1975 (Cth).
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

21. Each of the parents of a child has complete but several parental responsibility for such child[4]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[5] for the child. The section provides as follows:
[4] s 61C Family Law Act 1975 (Cth).
[5] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 60DA 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.

22. A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[6], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[6] s 65DAA(1) Family Law Act 1975 (Cth).
23. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and

(b to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly

24.    Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
25.    The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable.   Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[7]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[7] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
26.    If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[8], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[9]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[8] s 61DA(3) Family Law Act 1975 (Cth).
[9] s 61DA(4) Family Law Act 1975 (Cth).
27.    A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
28.    As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[10]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
[10] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
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.

29.    The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.
30. How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
31. Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
32. How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
33.    It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
34.    The approach to be adopted by a court is structured.
35. The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
36. The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
37. To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
38. Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
39. In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[11] where her Honour said;
[11] G and C [2006] FamCA 994.

The primary considerations

65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(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.
66 This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67 The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68 The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69              While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[12].
[12] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
70              The arguments supporting the first possible interpretation include:
(a)      Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
         (b)     The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

71     The arguments supporting the second possible interpretation include;
(a)   Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)   The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)    The whole of s.60CC calls for an evaluation of various factors by the court.
(d)   Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

71 My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [B] into the future.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[13]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[13] Ibid paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
This is a matter where there must be and was consideration of equal time or substantial or significant time within the meaning provided under s64DAA of the Act. In the circumstances of these proceedings the parties have agreed to a regime of equal time with each parent during weekends and school holidays. They agree that the orders should reflect a live with/live with approach. This means that each alternate weekend, from Friday to Monday (three nights) are nights that the child spends with each parent. The sole remaining issue is whether the child lives one additional night per fortnight with the mother or four additional nights per fortnight with the mother. That issue must be seen in the context as the difference between equal time or substantial and significant time. In either proposal the arrangement falls into the definition of substantial and significant time set out in s65DAA(3) of the Act.
Evidence and discussion
The mother gave evidence in accordance with her affidavit of 2 January 2007 and was cross-examined in relation to it. The mother’s sister S gave evidence in accordance with her affidavit of 3 January 2007. She was not cross-examined in relation to the material contained in that affidavit. Accordingly the evidence of S is treated as unchallenged. The father claimed that the mother’s family had a poor approach to the dietary needs of the child, and further claimed that the family used ‘fast foods’ at an unacceptable rate. This was suggested lead to S being obese. However, S was not cross examined and the claim by the father in this respect is not accepted.
The father complains about the approach the mother adopts to the dietary needs of the child. On the material before me I am satisfied that the mother adequately meets those needs. The family reporter has no concerns and the mother prepares meals on a regular basis for Mr J (“[her partner]”). I am satisfied that the mother has met and will meet the dietary needs of the child
The mother gave evidence in chief that she had never known the father to be in paid employment except in a limited way. There seems to be little issue as to this although it is not significant in terms of the care of the child.
The mother’s present residential arrangement is somewhat unusual. The mother has formed a relationship with her partner. E is a child of that relationship. The mother says that she does not co habit with her partner. When the mother is not caring for the child the mother lives at the home of her partner’s parents and visits him most afternoons after work, their respect homes being in close proximity. The mother’s partner does not have a relationship with his parents, the mother deposes that he does not speak to them and does not go to their home except to walk the mother to his parent’s home after the mother visits and cooks him dinner. From time to time the mother and her partner have time out together (normally not at the time when the mother has the care of the child). The partner’s parents look after Ethan on those occasions.
When the mother has the care of the child she lives at her mother’s home. This is a three bedroom home where the maternal grandmother uses one bedroom, the mother’s sister uses the second bedroom and the child uses the third bedroom. The mother sleeps in the lounge room with E.
The mother’s partner lives in a house close to his parent’s home with two other men which accommodation the mother describes as a “bachelor pad”. As indicated above the mother regularly visits that home with E, she walks to it (but not after dark) and is escorted home by her partner. She cooks a meal for herself, E and her partner, but not the other occupants. About once a month the child will attend at that home and the mother includes him it the family meal. The mother does not have a driver’s licence and is dependent upon the maternal grandmother, her sister and other people to drive her about. Her partner does not have a driver’s licence.
The mother expressed hope that she can buy a home in the area where the child attends school. In evidence she conceded that this is an unlikely possibility bearing in mind her financial circumstances and that of her partner. The mother’s living arrangements are unsettled as are set out in paragraphs 92 to 99 of her affidavit.
The mother’s hopes for the future are somewhat tenuous and she has a history of relationship breakdown with her mother. If that occurs she said she would either move in with her partner or move into a woman’s refuge.
The current environment for the child is somewhat unsettled although the child’s maternal grandmother’s home has been a secure place for him for the last two and a half years. In addition, I find that the mother is likely to make better accommodation arrangements once these proceedings are brought to an end.
It was asserted that the mother has severe mood swings and is argumentative. The mother admitted she has mood swings, particularly after the birth of the child when she suffered from post-natal depression. She says she has suffered from it after the birth of E but she has not sought medical assistance but is managing well. She said she is occasionally depressed.
The father said that the mother had told him she suffered from Bi-Polar disorder. The mother said that she did not suffer that complaint and did not tell the father that she had. There is no other evidence in that regard and noting the agreement by the parties with respect to most issues of parenting it is not a factor to which I attach any weight.
The mother was not an impressive witness, I have concerns about her frankness particularly in regard to her living arrangements. She displayed animosity to the father and to Ms P (“[the father’s friend]”). The level of conflict between the parties is intense. The mother appears to resent the time that Ms P sends with the child. The mother has little insight into the extent her conflict with the father impacts on the child.
It is likely that both parties will need to take up some form of paid employment in the medium term future which will impact on their available time to care for the child. Both parents will remain available to care for the child.
The child is entitled to know and spend time with E.
There is an issue about travel, the mother lives thirty to forty five minutes from the child’s school. The mother does not have a drivers licence, but she has a car and access to her mother’s car. I am satisfied that the mother will be able to arrange transport for the child too and from school. Similarly the father does not have a licence, however I accept that he proposes to obtain one and has family and friend support to assist in the child’s transport. A trip of thirty to forty five minutes each way is not unreasonable in terms of taking a child to and from school. I am concerned that 5 days per fortnight may be a somewhat tyring for the child at his present age and for this year and next I propose that the trips shall be 4 days per fortnight. In addition it will give the child time to adjust to that change.
The father expressed concerns that such time may impact on the friends and social interaction of the child. The only change is two to three afternoons per fortnight during school term. That change will be of limited impact as to the child’s play after school. In any event there are good facilities at the home of the child’s maternal grandmother.
There was an issue as to whether the father had hindered the time the child spent with the mother over the last Christmas/New Year period. The mother said that the father’s approach was such that it necessitated court proceedings. The father said the mother simply needed to ask and he would have accommodated her request. The father was cross examined on the report of the Family Consultant. In terms of the father’s comments to Ms M he prevaricated and I infer that he was not being frank with the court in that respect.
Ms M confirmed that the father clearly stated that he wanted the child to spend only one week of the Christmas school holidays and it was not week about.
In areas where the evidence of the father and Ms M conflict, I prefer that of Ms M.
I infer that the father was trying to reduce the time the child spent with the mother over the Christmas/New Year period.

The father says that his relationship with Ms P is as tenant and landlord. I do not accept his evidence in that regard. Ms P attended a sports day with the child, she attended the art show, she attended transition at school with the father and is on the canteen roster at the school (in circumstances where the child is the only child at that school with whom she is involved). This is not to be seen as a criticism of her involvement but a concern that she did not give evidence and concern as to the quality of the father’s evidence.
The family reporter observed in page 5 of her report that in an altercation between the mother and Ms P. At the end of that altercation the child was left with Ms P.
Counsel for the mother endeavoured to criticise the father for a number of accommodation moves made by him. The father has moved twice and has lived in three homes. Over the relevant period there can be some mild criticism of the father from moving so far away from the mother but I infer and take judicial notice that low cost rental accommodation in Adelaide is not easy to come by.
Mrs M gave evidence in accordance with her report dated August 2006. There was no issue as to her qualifications. She confirmed in cross-examination that she attended at the father’s home and was satisfied that he and Ms P were in a de facto relationship. It was clear to her that they were living together, they shared the same bedroom and that Ms P was introduced as the father’s “partner”.
Powell J said in Roy –v- Sturgeon 11Fam LR 271 - at 274 the following:-
As I said in D v McA (1986) 11 Fam LR 214 it seems to me that each case will involve a court making a value judgment having regard to the variety of factors relating to the particular relationship, those factors including, but not limited to the following:
(a)       the duration of the relationship;
(b)       the nature and extent of the common residence;
(c)       whether or not a sexual relationship existed;
(d)the degree of financial interdependence, and any arrangements for support, between or by the parties;
(e)       the ownership, use and acquisition of property;
(f)       the procreation of children;
(g)       the care and support of children;
(h)the performance of household duties; the degree of mutual commitment and mutual support;
(i)reputation and ‘public’ aspects of the relationship.”
The Justice Bryson in Davies v Sparkes 13 Fam LR 575 — 4 December 1989 at 577. observed:
“Why are the words “de facto” used; what is the fact to which this refers and why in Latin; why are the partners referred to as husband and wife when the subject begins with the fact that they are not; what is a domestic basis on which people can live and how can it be bona fide; what would be mala fides; and why does Latin recur? The meaning of the words is not found by answering these questions: the language used is the common coin, not attempted precision; and that is what the subject matter required. The definition does not use language which is charged with special legal meaning or with any particular difficulty of understanding. Exposition and exegesis could add little to understanding and could do little to assist the task of applying the concept to any particular set of facts.”
He went on to approve the factors set out by Justice Powell in Roy v Sturgeon. In Hibberson v George (1989) 12 Fam LR 725 it was held that the factors to be considered in determining if a de facto relationship exists are;
Duration of the relationship, nature and extent of common residence, the existence of a sexual relationship, the degree of financial independence and arrangements for support, the ownership, use and acquisition of property, the procreation and care and support of children, the performance of household duties, the degree of mutual commitment and mutual support and reputation.
Justice Young held in Sim v Powell (1997) 22 Fam LR 243. (September 1997) that the essence of a de facto relationship is that the parties treat one another as husband and wife. He also applied the principles outlined in Hibberson v George and Roy v Sturgeon.
In terms of the father and Ms P I note they have been in a relationship since late 2005. They have shared the same common residence and a sexual relationship existed, at least until early 2006.
I am not assisted as to their financial interdependence, more as to the ownership and use of property although the property, as I understand it, is owned by Ms P. They have no children.
However Ms P is involved in the care and support of the child. She attends functions at the school and is involved in the handover process.
In terms of household duties I am able to infer that those duties are divided between the father and Ms P.
In respect to the reputation and public aspects of their relationship it is of value noting that Ms P attended court on the first day of trial to provide emotional support for the father.
The father did not call Ms P and I am able to infer that her evidence would not have assisted him. I find that the father and Ms P reside in a de facto relationship.
In terms of the mother, she has been in a relationship with her partner since the second half of 2005. I have some concerns about the mother’s evidence of residence but even on those it is clear that the mother lives with her partner’s family. The mother and her partner do not share a common residence although they do occasionally have time away together. I infer that a sexual relationship exists and continues to exist between the mother and her partner.
Both the mother and her partner are financially independent although her partner provides meals for the mother at the times she visits with E and sometimes the child.
The mother’s partner and the mother have a child, E, and jointly share in the care and support of that child. They have meals together, most evenings when the mother is otherwise residing at her partner’s parent’s home. She travels to her partner’s home, prepares meals and they eat together as a family.
The mother performs household duties and has expressed a view to the family reporter that they plan to commence cohabitation.
I find that the mother is living in a de facto relationship with her partner.
The provisions of s65DAA of the Act requires the Court to consider the child spending equal or substantial with each parent in certain circumstances. The proposal of both parties amounts to the child spending substantial and significant time with each parent, such time being in accordance with the definition provided under s65DAA(3) referred to above. What is the child’s best interests during the school week? Is it spending one day with the mother or spending four days with the mother which brings it into the week about proposal sought by the mother.
The objection by the father to the week about arrangements focus on the living arrangements, the long period of travel, the child’s involvement with school and school friends and diet. Each of those are discussed in these reasons. One of the difficulties with regard to these proceedings is that the evidence of both the mother and father was less than satisfactory. Significant weight needed to be placed upon the report of Ms M. Ms M’s evidence was that it was in the child’s best interests that he spends more time with the mother. I do not accept her conclusion as to how that ought to occur but I do accept her conclusion that in all of the circumstances and taking into account all of the proper considerations there is a benefit in living more time with his mother.
The child commenced his schooling at the end of 2006. He has the remainder of this year at school before he commences Year 1. In the first few years of school the travel five days per fortnight may be a little difficult for him although he will, from even on the father’s case, travel for one day per fortnight.
I determine that it would be in the child’s best interests that he spend more time with the mother but that time ought to build up to an equal shared parental arrangement by the commencement of the 2009 school year.
Section 60CC(2)(a)

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

I find on the evidence before me that there is a benefit in the child having a meaningful relationship with both of his parents. Both have been involved in his life to date and whilst their communication with each other is poor their love for and involvement with the child is of benefit to him.
Both parents talked about difficulties in the past but in the circumstances of this case the child is not at risk from physical or psychological harm or being subjected to, or exposed to abuse, neglect or family violence. In making that finding there is one caveat, that is that the continuing poor communication between the parties and their inability to put aside their differences and the parties continuation of exposing the child to this conflict is not in the child’s best interests.

Section 60CC(2)(b)

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

In regard to protecting the child, this is a factual matrix where he lives almost equal time with each parent. There have been allegations in the past but in the present circumstances they are not relevant. What is of concern is the ongoing conflict between the parents which shows no sign of diminishing.
To protect the child from that conflict there needs to be reduced occasions that the parties are brought together.

Section 60CC(3)
(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;

The child has a close relationship with both parents and is not at an age or maturity where he has expressed a significant view to which the court ought to have regard. The family reporter observes that the mother believes the child wants to spend more time with her. She is confident of the mothers parenting abilities. The mother claims that he says wants to spend more time with her, I give that evidence some but not great weight.
(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 family reporter observes:-
“[The child] presented as a pleasant, likeable child. In both parents households he has an abundance of toys and possessions. He seems to be very much loved and wanted in both households and appeared to enjoy a strong attachment to the adults in his life. Both parents observed to attend and respond to [the child’s] needs. [The mother] was observed to discipline [the child] appropriately and insistently.
[The child] enjoys a close and affectionate relationship with his mother. He is well care for by her. [The mother] presents as an active committed parent. The current arrangements have restricted her role in the involvement of [the child’s] life. There would appear to be little evidence to support [the father’s] allegations and criticisms of [the mother’s] parenting. It is the writer’s opinion that [the child] would benefit from spending more time with his mother”.
The mother seemed at times to be strongly motivated by the views of the child. In that regard she gave evidence that the child determined whether she went to visit her partner. I accept the family reporter’s view that the mother should spend more time with the child however I have some concerns about equal time bearing in mind the mother’s current housing arrangements, the conflict between the parents (for which both parents should take significant responsibility) and the distance in which the mother presently lives from the child. I have had regard to the father’s concerns in the narrow context of this dispute, namely travel times, accommodation, socialisation with school friends, tiredness, diet, and parental conflict.
The parents each have a good relationship with the child. The mother’s evidence is that the child has a close relationship with E and on the limited evidence available to me, the child has a good relationship with both the mother’s partner and father’s partner.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

Each party expressed the rhetoric about facilitating the time the child has with the other parent and members of the other parent’s family. That rhetoric is not met by reality. I determine that both parties are focused in respect of their own relationship with the child and do not have a significant regard for the other parties relationship with 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:
(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;

The difference between the parties is not significant. Providing for the child to live more time with his mother will not significantly affect changeover as the distance will remain the same and hopefully the effect of the orders will provide for minimal changeover. The orders I will make involve more travel for the child but this will build up over about two years. In that regard I do not accept the submissions of the family report and the alternate position of the mother with regard to the two periods set out in the family report. My concern in that regard is that it imposes significant additional travel on the child, in circumstances where he is still relatively young.
(d) 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 mother lives about thirty to forty five minutes from the father’s home and the child’s school. Neither party has a driver’s licence at the present time and depend on others to assist as there is on direct public transport. The mother has some hopes of finding alternate accommodation but even she concedes in
cross-examination that this is not realistic. Both parties are in receipt of Centrelink benefits and the cost of transportation is a significant feature for both. I find that both parties have resources available to met and manage travel for the child in terms of the orders I will make.
(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;

Both parties are able to provide for the needs of the child including emotional and intellectual needs. This must be limited in terms of the issues I have raised above with regard to the continuing deep conflict between the parties.
(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;

Not relevant in these proceedings.
(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;

Not relevant in these proceedings.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

In relation to this consideration the court has had regard to all of the facts and circumstances set out above and generally finds that both parents have a strong attitude to the child and the responsibility of parenthood with the exception of conflict each with the other.
(j) any family violence involving the child or a member of the child’s family;

Issues of family violence were raised but in the context of the narrow issue to be determined and the concession by both parties that they were verbally and at times physically violent towards the other it does not impact on these proceedings except to note the mother’s continued concern of the father, such as she needs someone to be with her at changeover.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;

Not relevant in these proceedings.
(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;

The parties will invariably end up in proceedings again unless they find some other method to resolve conflict. To that end the court proposes to direct both parties, by consent, to attend a parenting after separation course. In addition the court will make an order that the parties undertake mediation through a Family Relationships Centre or similar before commencing further proceedings, unless there are urgent matters to be determined by the Court.
(m) any other fact or circumstance that the court thinks is relevant.

In determining the best interests having regard to the considerations under s60CC the court has taken into account all of the evidence, findings and facts which are detailed in these reasons and in a broader context and further the court has considered the extent to which each of the child’s parents has fulfilled their responsibilities as a parent as set out in s60CC(4) and (4)(a) of the Family Law Act.
Conclusions
Considering all of the evidence and findings and considering all of the matters required of me under the Family Law Act and having regard to the best interest of the child the orders which the court will put in place in respect of the limited issues are:-
(a) That the child live with the mother from after school Thursday until the commencement of school Wednesday each alternate week during school term for the school years 2007 and 2008.
(b) That from after school Friday until the commencement of school Friday from the 2009 school year.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Kelly & Leigh.

I certify that the preceding 105 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate:

Date: 29 March 2007

[2007] FamCA 271

29 March 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent