Kennedy and Kennedy

[2007] FamCA 1221

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY [2007] FamCA 1221

FAMILY LAW - APPEAL – Parental responsibility – Presumption of equal shared parental responsibility – With whom a child lives – Two children of the relationship aged three and seven – Mother appealed FM orders of equal shared parental responsibility and week-about arrangement – Presumption rebutted by the father’s family violence including threatening to kill the mother.  Following the FM’s orders, the father assaulted the mother’s new partner in the presence of the children – Equal shared parental responsibility not in the best interests of the children as both parents demonstrated a significant inability to communicate with each other about the children – The proper position is that each parent retain parental responsibility pursuant to s 61C – The FM in error in ordering equal time in the form of a week-about arrangement on the basis that fewer changeovers would protect the children from psychological harm - Need to consider whether it was rather the time away from their primary attachment figure (the mother) that may cause such harm – Further error in considering practicability only in a geographically proximate sense, without considering the working arrangements and availability of each parent – Further, as the presumption of equal shared parental responsibility did not apply, consideration of equal time was not necessary – Appeal allowed – On a re-exercise of discretion, arrangement operating prior to the FM’s orders restored.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
House v The King (1936) 55 CLR 499

APPLICANT: MS KENNEDY

RESPONDENT: MR KENNEDY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:	MLM	9723	of	2005
SA	37	of	2007

DATE DELIVERED: 23 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 23 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Coutler Roache

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D.J. McLeod

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Jackson Sweet

ORDERS

1. The appeal be allowed.

2. Orders (2) and (3)(a) and (b) and order 11 made by O'Dwyer FM on 23 March 2007 be set aside and in lieu thereof, the following orders be made.

   (2) The husband and wife each retain parental responsibility for the children, J, born February 2000, and K, born January 2004.

   (3)      The children live with the husband as follows: 

   (a) whilst either children is not attending school:

   (i)from 6 pm Friday to 7 pm Sunday, commencing 3 August 2007 and each alternate fortnight thereafter;

   (ii)from 6 pm Tuesday until 8.30 am Friday, commencing 7 August 2007 and each alternate fortnight thereafter;

   (b)      when both children are at school:

   (i)the periods referred to in (a) above shall commence at the conclusion of each school day;

   (ii)the children should be returned to school on each alternate Friday morning rather than to the wife's home.

   (c)On days when the changeover is to occur at the commencement or conclusion of the school day when both children are attending school, the changeover shall occur at the school; otherwise, the changeover is to occur inside the foyer of the local police station.

3. These new arrangements shall take effect as and from Friday, 27 July 2007, when the children are to be returned to the wife at the local police station at 8.30 am. 

4. The appeal be otherwise dismissed.

5. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

6. The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLM 9723 of 2005
APPEAL NUMBER: SA 37 of 2007

MS KENNEDY

Applicant

And

MR KENNEDY

Respondent

REASONS FOR JUDGMENT

1. This is the wife's appeal against orders that were made by O'Dwyer FM on 23 March 2007.  The case concerns parenting arrangements to be made in respect to two children, J, born February 2000, and K, born January 2004.  It will be seen that J is now seven and K, three.

2. The orders the subject matter of the appeal concern are, firstly, order 2, that the husband and wife have shared parental responsibility for the children and, secondly, order 3, that deals with the time the children were to spend with each parent was to be shared between them during school term.  The orders that were being challenged were orders 2, 3 and 18.  Order 18 dealt with a dismissal of a claim for costs and no arguments were advanced before me today in relation to order 18.  So this judgment focuses upon the orders that were made in order 2 of the orders and order 3 which are as follows:

   2.The husband and wife have equal shared parental responsibility for the children [J] born February 2000 and [K] born January 2004.

   3.The children live with husband as follows:

   Whilst both children are not attending school:

   (a)from 6.00pm Friday to 6.00pm the following Friday commencing 30 March 2007 and each alternate fortnight thereafter;

   When both children are at school:

   (b)from the conclusion of school (or 3.30pm) Friday to the conclusion of school (or 3.30pm) the following Friday, and each alternate fortnight thereafter.

BACKGROUND

1. The parties were married in October 1998 and separated in October 2005.  The mother was aged 30 at the time the judgment was delivered early this year and the father 34. 

2. After the parties separated, there were proceedings commenced fairly rapidly and orders, said to be final orders, were made in the Federal Magistrates Court on 22 February 2006.  At that time, both of the parties were represented. 

3. The orders provided, insofar as is relevant to these proceedings, that

   ·    the husband and wife were to retain joint responsibility for the long-term care, welfare and development of the children and

   ·    the children were to reside with the father on a two-week cycle, in the first week from 9 am Wednesday to 9 am Friday, and in the second week, from 6 pm Friday until 7 pm Sunday.

4. They went on to provide that there would be an additional night in the first week to commence at a time agreed upon between the parties, having regard to how the children had adjusted to the new living arrangements, but in any event, not later than six months from the date on which the wife was leaving the former matrimonial home.

5. The parents were each to have the responsibility for the day-to-day care, welfare and development of the children whilst the children were residing with them pursuant to the orders.

6. Changeover arrangements were to take place at the wife's home at the commencement of contact, either at the school or the husband's home at the conclusion of the period when the children were going to be with their father.

7. Those arrangements, whilst expressed to be final, did not remain final for very long because the matter was quickly back on the boil.  As I indicated, those orders were made in February 2006.  By August 2006, the father had filed a new application in which he sought that the children live with him and that they spend only six hours each Sunday with their mother.  That application, not surprisingly, elicited a response which saw new battlelines drawn. 

8. The new battlelines the mother proposed were that the parties have equal shared parental responsibility for the children; that they make joint decisions after consultation with each other about major long‑term issues in relation to the children; that the children live with the mother and see their father from Wednesday morning to Friday morning on alternate weeks and from Friday evening to Sunday evening on alternate weeks, with the changeover inside the foyer of the local police station.  So the mother was seeking a slight reduction in the father's time with the children; the father was seeking a dramatic change in their circumstances.

9. On 18 August 2006 some interim orders were then made in the proceedings which saw a continuation of the status quo.  The father was now appearing in person.  The Independent Children's Lawyer was appointed.  A family report was ordered.  The changeover was ordered to take place at the local police station and effectively the earlier consent orders were continued, that is, Wednesday to Friday each alternate week, Friday to Sunday each alternate week, and then an additional day to be added which, I am informed by the parties, was added fairly shortly after those orders were made in August 2006. 

10. The position thereafter until the trial in March 2007 was that the children lived with their father, 6 pm Friday to 7 pm Sunday each alternate week, and from 6 pm Tuesday until 8.30 pm Friday in the other week.  So that five nights a fortnight they would be spending time with their father and nine nights a fortnight with their mother, the father's periods being broken up into a period of two days on, two days off, three days on, seven days off.  That was the position as at the time of the trial.

11. Much of the trial focused upon circumstances involving the wife's relationship with a Mr P.  Mr P had been the long-term partner of the wife's sister.  Indeed, they had a child, JD, aged six. 

12. Mr P was the victim of some industrial problems that caused him to have some psychological problems and his relationship with the wife's sister faltered and Mr P sought refuge in the parties' home.  He was taken in by them for a few days.  That was at a time when the parties' relationship itself was in serious disarray.

13. Some time after the parties separated, at about the beginning of March 2006, Mr P and the wife began a romantic liaison.  Indeed, the fruits of that liaison are making noise in the back of the court as I speak.  The father did not take kindly to Mr P's involvement and orders were made, on an interim basis at least, restraining Mr P from coming into association with the Kennedy children.  Much of the trial in the proceedings between the Kennedys heard by O'Dwyer FM focused upon whether or not it was appropriate to restrain Mr P from being able to have an appropriate relationship with the Kennedy children and indeed with Ms Kennedy, who at that stage was expecting his child. 

14. Ultimately, the judgment of O'Dwyer FM absolved Mr P from any inappropriate behaviour, absolved him from being any risk to the children and removed any barrier to he and Ms Kennedy living together with the Kennedy children as a new family constellation.  Once that issue was out of the way, there seemed to be no possible basis upon which Mr Kennedy's claim to have the children residing with him and barely seeing their mother could be sustained.  Indeed, that was the view taken by the Federal Magistrate and it is not the subject of any cross-appeal in these proceedings.

15. The Federal Magistrate then had to deal with the other evidence in the case, namely effectively the cross-application to reduce the father's time with the children.  By the time the matter had come on for hearing, the mother's counsel had retreated from the position in her written application and had opened the case, seeking different orders.  It was her case that the amount of time the children should spend with their father should consist of the Friday and Saturday each alternate weekend and otherwise Thursday overnight once a fortnight, so that instead of he having the children with him for five nights per fortnight, it would be reduced to three nights per fortnight, it being argued that the frequent changeover of the children with a very short period between - that is, the two nights on, two nights off, three nights on arrangement - was unsettling to the children, particularly the youngest child.  She argued primarily that a retreat to three nights per fortnight was appropriate but as a fall-back position, the existing position should remain.

16. The retention of the existing position was the position adopted by the Independent Children's Lawyer at the hearing.  The father's position was a little less clear.  He was unrepresented at the hearing.  In formal addresses, he said at one stage in his final address that he liked the submissions being put forward by the Independent Children's Lawyer and had no reason to move away from them.  When he was invited to make his final address he said:

    Firstly, I'd just like to say I support - the submissions that I've heard from the independent children's lawyer seem not too bad, your Honour.

17. A few sentences later, however, he said:

    I have submitted my application in this case and that application is that I have full custody of [J] and [K] and I still stand by that application.  That's all, your Honour.

18. So that seemed to be an inherently contradictory position, but whatever it was, he was not putting forward any proposition that had been raised by the Federal Magistrate in the course of discussion with one of the witnesses, namely that perhaps the answer to this case was an equal week-about arrangement.

19. I should say by further way of background that the father's employment is such that he has each second weekend off from his employment and once a fortnight he is also off on Wednesday and Thursday, so he has a roster that whilst regular, is a little unorthodox and it perhaps explains the manner in which the parties originally agreed to separate the time that the children spent with each parent.

20. The mother's position at the time of the trial was that she was expecting a baby but she was working on Tuesdays once a week.  She has since had that child, I, who was born in May 2007, and she is now on maternity leave and does not expect to return to work until next year some time. 

21. The mother is available full-time to care for her daughters; the father has time off four days a fortnight.  He has been assisted by his parents and he also has some assistance from the maternal grandmother who is estranged from her daughter because of the peculiarities, it would seem, of the daughter, Ms Kennedy, now living with her other daughter's ex-partner.  This has caused some rupture in the normal family arrangements.

THE JUDGMENT

1. I will now turn to the judgment and the grounds upon which it is challenged.  Having set out the background that I have already described, the judgment turns firstly to focus on issues relating to Mr P under the heading “Is Mr [P] an Unacceptable Risk”, and concludes that there is no such risk involved.  It then turns to the inter-partes issues that are the subject matter of these proceedings.

Equal shared parental responsibility

1. Firstly, the learned Federal Magistrate began under the heading “Sole Parental Responsibility” to discuss whether or not it was appropriate to make the orders sought by the wife at the hearing, namely that she should have sole parental responsibility.  The Federal Magistrate noted that there was a presumption under the legislation in favour of shared equal parental responsibility and that the wife sought to rebut the presumption, relying on an allegation of violence and upon difficulties with communication between the parties.  The Federal Magistrate went on to say that:

   The violence allegation seems to have arisen upon the discovery of the wife's new relationship with Mr [P]. It was no doubt an acrimonious and distressing period.

2. He accepted that the husband had acted inappropriately when making threats to kill and threats to do physical harm to both the wife and Mr P, but said there was no evidence of actual physical violence being perpetrated. 

3. He went on to say that the threats have led to the changeover at the local police station.  There had been no incident of any note since that time and that there was no reasonable prospect that the husband would be violent in the future and it followed that the wife could have no reasonable fear of violence in the future. 

4. Having dealt with the issue of violence on that basis, he turned to the issues of difficulties in communication and said that there was a lack of material to suggest that the presumption was rebutted.

5. It is convenient to deal with this issue in isolation.  Firstly, I have admitted into evidence some conflicting affidavits relating to a further event on a changeover that took place on 20 April of this year, shortly after the orders had been made.  An incident occurred between the father and Mr P in the foyer of the local police station.  The incident ended with Mr P being injured and the husband being charged with an unlawful assault to which he subsequently pleaded guilty and was fined $1,000.  

6. There is some conflicting evidence as to the circumstances surrounding the assault, the wife's evidence being that it was unprovoked, happened in the presence of the children and it was extremely violent.  She is supported by R. B., a justice of the peace, who happened to be in the foyer at the time and he said that he saw Mr P approach Mr Kennedy, show him a piece of paper, to which Mr Kennedy said, "What's it got to do with you?" and then headbutted Mr P and a scuffle ensued, in which Mr P was appearing to be trying to defend himself. 

7. The father's version of the events is that he was provoked by Mr P at the time and that he acted with some degree of justification.  He said that he felt threatened due to the fact that when he stood up, Mr P was face to face with him and due to the feelings of being assaulted by Mr P:

   I headbutted him.  He fell to the ground and then got up and attempted to hit myself at which point I wrapped up his arms and waited for the police, who were imminent.

8. Without endeavouring to sort out the fine detail, what is common ground is that the father subsequently pleaded guilty and was convicted in relation to an unlawful assault upon Mr P and that it all occurred in the presence of the children and that the optimistic predictions of the Federal Magistrate that there would be no reasonable prospect of violence by the husband in the future and no reasonable fear of the wife of violence in the future proved to be inaccurate.

9. Be that as it may, what is also common ground is that in the course of the trial, the father admitted that on 5 March 2006, he threatened to kill the mother and that led to the mother obtaining an intervention order.  He further admitted that in January 2006, he locked the mother out of the house which required the wife to go to call the police.  He further admitted that he telephoned her on a mobile phone and said he would destroy all her belongings.  He further admitted that he told her he was destroying her belongings and that the wedding photo had been broken and he further admitted that there had been three arguments every day for four months and when it was put to him that he had been coming up close to the wife and shaking his finger in her face, he said there was a lot of that going on and vice versa.  He finally admitted that he had on an earlier occasion intervened in an argument between Mr P and the wife's sister - this was several years earlier - in which he said:

   Mr [P] was mouthing off, so I belted him.

1. That is perhaps not as significant as the other material.  It was the wife's case that before she had commenced her relationship with Mr P, the husband had been violent to her.  The violence had occurred at around the time of separation and that the incidents to which the husband had admitted in cross-examination had all occurred before the sexual relationship with Mr P had started, it starting some time earlier in March 2006, and these incidents happening either late in 2005 or January 2006.

2. The Family Law Act 1975 (Cth) (“the Act”) provides in s 61DA(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.

3. Subsection (2) provides some two exceptions, one of which is now relevant, namely:

   The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in -

   (b) family violence.

4. "Family violence" is defined in s 4(1) of the Act to mean:

   Conduct, whether actual or threatened, by a person towards or towards the property of a member of the person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her personal wellbeing or safety.

5. In this case, there was evidence that would lead to the necessary belief that the parent of the child, namely the father, had engaged in family violence.  That being so, the presumption had no application.  Accordingly, the Court was then left with the general starting proposition set out in s 61C, that each of the parents of the children had parental responsibility for the children, but it had the power to make a parenting order that would vary that position, absent the application of any presumption at all. 

6. This seemed, on the face of it, to be a most unlikely case for the application of any presumption that these parents should have an equal shared parental responsibility.  They had exhibited a significant inability to communicate with each other on any sensible basis relating to the children.  Although a communication book had been established, many of the remarks in the communication book seem to indicate a lack of ability to rationally deal with each of them.

7. There was an aura of violence pervading the proceedings, perhaps understandable in the sense that emotions were running high, but nonetheless the aura was present.  To reasonably expect that these people, at the current stage of development in the breakdown of their relationship, would be able to rationally come together to discuss serious issues relating to the welfare of the children is in my view moving towards an unattainable goal and it was made all the more so by the stand that was being taken, particularly by the father in the proceedings, that the mother's role in the lives of these children should be particularly minimised, down to six hours once a week.

8. As such, I think it was conceded in the course of the argument before me by the parties, and particularly by the Independent Children's Lawyer, that the relevant provisions of s 61DA do not apply.  Accordingly, the order made by the Federal Magistrate that was prefaced upon the belief that the presumption did apply could no longer stand and for the reasons given by the Federal Magistrate, for me to achieve a similar order, I would need to be persuaded it was in the best interests of the children.  For the reasons that I have already indicated, I do not perceive that it is in the best interests of the children that these parents should mandatorily be required to discuss issues before either of them can make any significant decisions about the welfare of the children. 

9. I think it is important that they each retain parental responsibility but for them to act in conjunction, one with the other, is an expectation that is at this stage unrealistic.  Hopefully they will develop their relationship to a point where they can talk to each other about the mutual interest they have in the welfare of the children and perhaps some of the counselling that has been ordered or the parenting courses that have been ordered by the Federal Magistrate will go some of the way towards achieving that goal.  But for the present time, it seems to me that that is not available.

What shared time is appropriate?

1. Moving on then to the second part of the appeal which concerns the shared time arrangement, the Federal Magistrate, having dealt with the issue of the shared parental responsibility order, moved to quickly and appropriately dismiss the husband's residence application.  Then in the reasons for judgment, which were published some time after the orders were made, sought to explain why he had made a week-about arrangement rather than some other order that was being sought by one or other of the parties. 

2. The evidence of the welfare reporter had loomed large in the course of the proceedings on this issue.  The family report had been commissioned from a Dr H, a family consultant/psychologist, and it was the expert evidence that was before the Federal Magistrate.  The reporter gave oral evidence.  He had recommended that the present living arrangements, that is, the five/nine arrangement that I have already described, should be continued, that there be no restrictions placed upon Mr P with respect to his interaction with the children, he made recommendations about the school holidays and special periods which are not the subject of this appeal, and there was a live dispute which subsequently resolved itself about J's school enrolment.  So he had come down firmly with a continuation of the existing arrangement.

3. In his oral evidence, the issue was canvassed at some length.  Firstly, in cross-examination by the mother's counsel, who at that stage was trying to argue to reduce the time that the father was spending with the children down to three days a fortnight with a larger gap between the two periods, it was put to the witness that the arrangement of two days on, two days off, three days on was likely to be disruptive and that children do not have a chance to settle into a routine.  A general question was then put with that sort of description:

   It is not generally considered to be in the best interests of the children to spend equal or nearly equal time with both parents when there is a significant level of dissension between the parents.  Is that a correct statement of a general understanding in relation to the time children spend with - - -?---With respect, even if the parents live together permanently, tension between parents is never a good thing for kids but I'm not quite sure I go along with - changing the time isn't going to change that.  The issue isn't a question of how often the children are with their father in terms of that issue, that's an issue between the parents.

4. Then it was put to him:

   It is very difficult to actually have a working relationship where children are spending equal or nearly equal time with both parents [in the presence of conflict between the parents]? --- One doesn't have to be a psychologist to answer that one.  Of course it's not a good thing.

5. Subsequently, he was asked to comment about what is described as -

   the chopping and changing too frequent, the two days?

6. Dr H said:

   For a seven‑year‑old it's not a problem.  A three‑year‑old - it's not necessarily a good thing at three to be mucking around too much but, you see, the bottom line with youngsters is that if it's done on a regular predictable basis, it is not a problem.  What children need is security, predictability, and it may not sound the best, but if it is regular and there is all this nonsense about the communication book got rid of, if Mr [Kennedy] can start looking at the children and say, "They are more important than what I think of [Mr P]" or his former wife - and he needs counselling I think to do that, provided Mrs [Kennedy] also thinks that and isn't prepared to attack Mr [Kennedy] because of things that have gone on, children are very adaptable if the parents are, and if the parents are secure in themselves in terms of what they're doing, you've got a true belief that they're doing the right thing for their children, that's the key, not the number of days. 

7. Then in the course of cross-examination by counsel for the Independent Children's Lawyer, it was put that perhaps block contact would be more appropriate:

   I actually don't believe it's necessarily all right for children just to have a week here and a week there.  I don't mind this idea of blocking it up, provided, as I say, it's done without fuss.  If it's done without fuss, children will get used to it, no hassle.

   Is this a case, sir, where both parties demonstrate they're not prepared to encourage the other's relationship with the other parent, that perhaps a week‑about arrangement would be appropriate?---But how would that affect the attitude of the parents?

   I take it that's a no?---It's what's best for the children, what would be better for them, and I say it again, it's the children that matter here, not what they think of each other and their partners or anything else.  If they can provide a regular time for the children, some days here, some days there, but always the same days in the fortnightly cycle, there's no big deal.

8. His Honour joined into the discussion, saying:

   I suppose it's I suppose it's an issue for me, Dr [H], but if there's more chance of having that stability and regularity and confidence in the regularity and the part of the children about the various contact periods, there'd be less chance for dispute if there was just a clean cut of two blocks of seven days.  Do you have any comment ‑ ‑ ‑?---It means two changeovers instead of four.

9. The discussion continued, with this statement coming from the witness:

   However, you asked are two changeovers better than four?  I actually think it's too long for young children to be away from the other parent actually, to be away for seven days at a stretch.  I think it is better for them, certainly the younger they are, to not be away for too long a period, and I know there's going to be five nights on one case, isn't it?

10. Mr Kennedy:

    Well, it's seven?---No, seven out of the 14, but the present proposal is the two nights, and then there's five nights.  Is that right?

11. I just pause momentarily to discuss that particular passage.  I know it is expressed in the gender-neutral term of "too long for young children to be away from the other parent", but I would read its context as probably intending to refer to too long for young children to be away from their principal caregiver.  It needs to be looked at in a situation where really, the effect of making this a seven‑day arrangement on, seven days off, is to significantly reduce the time that the children would be with their mother without affecting the arrangement that already exists, of the children being absent from their father for a week.  They miss him for a week; they then have two days on, two days off, three days on.  A change to seven-seven is to suddenly have the children away from their mother and I suspect that that is what Dr H was making reference to there, rather than trying to get some sort of balance in the position.

12. The discussion went on between his Honour and Dr H and he made this comment:

    A week is a long time in politics as well as the children's lives.  That's my reservation about it.

13. The Federal Magistrate was then concerned about the effect on interrupting school.  He said:

    I am going off the topic here, but I'm taking advantage of you being here.  What about when children are, say, attending school?  To interrupt the school week with a changeover of contact, isn't that also disruptive?---If it's regular, it's not an interruption.  It's the pattern.  It's what we do.

14. So that is really the evidence, the expert saying that these children should not be away from at least one parent - my interpretation, the principal caregiver - for as much as a week.  The mother was complaining that the changeovers are not necessarily too frequent but too close together and that was disruptive for the children; the father saying the mother should barely see the children at all, and the Federal Magistrate concluding that perhaps one way out of this is to minimise the number of changeovers, but in so doing, it seems to me, overlooking the reality that the effect of minimising the amount of changeovers in the manner planned is to minimise the amount of time the children are with their principal caregiver who, the evidence had indicated, had been primarily responsible for them for all of their lives, although the father had certainly been a very significant player in their lives and the parties had agreed that he should have five days a fortnight with the children, plus significant periods in the school holidays.

15. In the course of his Honour's reasons for judgment as to why it should be a week-about arrangement, he firstly indicated that the two changes per fortnight as opposed to four would protect the child that was already exhibited psychological harm at the frequency and disruption caused by the present regime.  I make the comment that it is difficult to know whether the harm came as a result of the frequency or of the issue of being kept away from the child's primary attachment figure.

16. The second reason given was that s 65DAA mandated that the Federal Magistrate consider whether it was in the best interests of the children that equal time with each parent be given.  Section 65DAA only has application if there is a parenting order that provides for equal shared parental responsibility.  As I have already indicated, that order should not have been made and accordingly, insofar as the existence of s 65DAA operated as a basis for the Federal Magistrate to place any weight on that as the appropriate outcome, in my view, it is no longer an appropriate consideration.  In any event, s 65DAA does not mandate equal shared time, nor does it even suggest it; it simply says it is a matter for consideration.

17. The Federal Magistrate then indicated that it was practicable to have equal time with each parent.  In the physical sense that the parties lived in close proximity to one another, the answer was yes, it was practicable; whether it was desirable, however, given the availability of one parent on a full‑time basis, the other parent hampered by the need to attend to employment and thus not be able to provide the care that little children, particularly little girls, could receive from their mother, seemed to me to be something that appears to have been overlooked by the Federal Magistrate.

18. The next matter is the dismissal effectively by the Federal Magistrate of the expert witness's evidence.  He said as follows,:

    80.The other significant consideration is the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either parent.  As I said earlier, I am troubled by the prospect of the effective separation on the youngest child from another for a period of one week.  In saying that, however, I note from the studies that have been done there is a suggestion by some that a child of three years of age is less likely to suffer separation anxiety than that in one that is older. I only mention this by way of exemplifying the often contradictory evidence from professionals about this issue. 

19. He cited a paper written by Vincent Papaleo, “Shared Parenting, One Size Does Not Fit All” as authority for the proposition that the studies show a child under three is less likely to suffer separation. The essential conclusions of Mr Papaleo appear to have been overlooked by O’Dwyer FM namely that

    In order for a shared care arrangement to work, parents must share a sense of the value of the importance of the child’s relationship with the other parent, as being at least as great as the child’s relationship with themselves….shared care is not the panacea that some proponents might suggest.

20. Whether there is or is not contradictory professional views about shared care, in this case, there was only the one source of evidence, namely from Dr H who said that this child was particularly suffering from stress involved with her parental separation. 

CONCLUSION

1. This was a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow (1979) 144 CLR 513 at 519; (1979) FLC 90-716 at 78,848; (1979) 5 Fam LR 719 at 722 Stephen J said:

   The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.

2. In House v The King (1936) 55 CLR 499, at 504 - 505, Dixon, Evatt and McTiernan JJ. said:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.

3. For reasons I have already stated, I am persuaded that the learned Federal Magistrate fell into error in determining that this was a case that required the application of a presumption of equal shared parental responsibility and fell further into error reaching the conclusion that the best interests of these children were to be advanced by making an order for the equal shared time on a week-about basis.

4. It is abundantly clear that the children should have a meaningful relationship with their father.  It is abundantly clear from the material that he loves the children dearly and that he adequately and appropriately cares for the children when they are with him.  At the same time, it is also very significant that there is no serious suggestion that the mother does anything other than love and care for the children adequately.  She is available on a full‑time basis.  She has demonstrated she well carries out the responsibilities of parenthood.  She has in her household the children's half-sibling whom no doubt they will hopefully grow up to love and cherish and will get great benefit from being with her as she passes through her various stages of infancy and grows into a young person herself.

5. It seems to me when I pay attention to the various factors that I am obliged to consider under s 60CC(3), on a re-exercise of discretion as I have been asked to do by all the parties concerned, that the most appropriate order in this case is to resurrect the status quo that existed before the Federal Magistrate made his order, even though it comes with less than desirable features about it, namely the problems brought about and complained by the mother of the two days on, two days off, three days on arrangement.  It is the best that is available in the circumstances, given the father's work requirements.  It meets his availability to be with the children.  Best of all, it gives them the opportunity to have a relationship with their father uninterrupted by his work obligations, but at the same time, have available a full-time parent at all other times.

1. In the circumstances, I propose to make that order.  I am conscious, as counsel for the Independent Children's Lawyer has reminded me, that four months have gone by with the children living in the other arrangement of week-about, but I have only evidence of one event that arose out of that, being the events of 20 April 2007.  I know nothing else about the current arrangements, how they have worked, how they have affected the children, but it seems to me that there were some wise words of the witness, the welfare officer, when he said that providing there is a routine established, the children would get used to it and even though they may be in their current routine, once it is changed back to the routine they previously had and it is able to be made the normative for this family, then the children will adapt and whatever slightly unsettling period now they face because of a return to that routine will hopefully quickly be forgotten.

I certify that the preceding sixty eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate:

Date: 18 October 2007