Korban v Korban
[2008] FamCA 292
•28 April 2008
FAMILY COURT OF AUSTRALIA
| KORBAN & KORBAN | [2008] FamCA 292 |
| FAMILY LAW – CHILDREN – parenting proceedings – equal time – review of cases before 2006 amendments considering equal time – factors worthy of consideration. |
| Family Law Act 1975 (Cth) |
| M and M (1988) 166 CLR 69; Seaford & Seaford [2007] FamCA 1460; Mazorski v Albright [2007] FamCA520; M & M [2005] FamCA 207; Handley & Tranter [2007] FamCA 344; Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; Unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J; H v H (2003) FMCA Fam 41; |
| APPLICANT: | Mr Korban |
| RESPONDENT: | Mrs Korban |
| FILE NUMBER: | SYF | 4503 | of | 2004 |
| DATE DELIVERED: | 28 April 2008 |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 21 & 22 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Todd |
| SOLICITOR FOR THE APPLICANT: | Jordan Djundja |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co. |
Orders
The child … born … May 2001 (‘the child’) is to live with her father at all times when she is not living with her mother according to these orders.
During school terms the child is to live with her mother as follows and at all other times with her father:
(i) in week 1 from after school Thursday until before school Monday; and
(ii) in week 2 from after school Thursday until before school Friday.
The fortnightly cycle referred to in order 2 hereof is to commence on the first weekend after the commencement of each school term.
Until the mother regains her driver’s licence the father or other adult nominated by him is to be responsible for the child’s delivery and return to and from the mother’s residence whenever applicable [away from the child’s school] and after the mother regains her driver’s licence the responsibility is to be shared equally as agreed.
By consent:
The parents are to have equal shared parental responsibility for the child.
The child is to spend time between her parents as follows and the other arrangements for the child as set out as follows are to apply:
(a) school holidays
(i)one half of all school holidays excluding Christmas school holidays and if agreement cannot be reached between the parties with respect to the child spending time with the mother during school holidays then the mother is to spend time with the child during the first half of all school holidays.
(b) Christmas holidays
(i)one half of the Christmas school holidays to comprise one period of two weeks and the second period comprising the balance.
(c) child’s overseas travel
(i)neither the father nor the mother shall do any act or thing to remove the child from the Commonwealth of Australia unless specifically authorised to do so in writing from one party to the other.
(d) Mother’s Day
(i)Mother’s Day of each and every year from 8.00 am until 6.00 pm to be spent with the mother, even if it is a weekend when the child is not spending time with the mother.
(e) Father’s Day
(i)Father’s Day of each and every year from 8.00 am until 6.00 pm to be spent with the father, even if it is a weekend when the child is not spending time with the father.
(f) child's birthday
(i)for a period of not less than two (2) hours on the child’s birthday to be spent with the parent who is otherwise not spending time with the child.
(g) Father's birthday
(i)for a period of not less than two (2) hours on the father’s birthday to be spent with the Father in the event that the child is with the mother.
(h) Mother's birthday and mother’s Name Day
(i)for a period of not less than two (2) hours on the mother’s birthday and also on the mother’s Name Day if the child is otherwise with the father.
(i) Christmas day
(i)commencing at 3.00 pm Christmas Eve and concluding at 3.00 pm Christmas Day in the year 2009 and each alternate odd ending year thereafter with the Mother and otherwise with the father;
(ii)commencing at 3.00 pm Christmas Day and concluding at 3.00 pm Boxing Day in the year 2008 and each alternate even ending year thereafter with the Mother and otherwise with the father;
(j) New Year’s Eve
(i)commencing at 3.00 pm on New Year’s Eve and concluding at 3.00 pm New Year’s Day in the year 2009 and each alternate uneven ending year thereafter with the mother and otherwise with the father.
(ii)commencing at 3.00 pm New Year’s Day and concluding at 3.00 pm on 2nd January in the year 2010 and each alternate even ending year thereafter with the mother and otherwise with the father.
(k) Greek Easter
(i)commencing at 3.00 pm on Good Friday and concluding at 3.00 pm on Holy Saturday in the year 2010 and each alternate even ending year thereafter with the mother and otherwise with the father;
(ii)commencing at 3.00 pm on Holy Saturday and concluding at 3.00 pm on Easter Sunday in the year 2009 and each alternate uneven ending year thereafter with the mother and otherwise with the father.
(l) further time spent with father and the mother
(i)such further time as the parties may from time to time agree between themselves.
(m) communication with child
(i)telephone communication at all reasonable times for both parties;
(ii)each parent is to cause the child to telephone the other party daily when the child is on holidays with that parent.
(n) holiday contact
(i)the father and the mother are each to provide to the other in writing a telephone number and address during periods when the child lives with or spends time with either parent during school holiday time;
(ii)if a party wishes to take the child on holidays pursuant to these orders such party shall give to the other at least four (4) weeks notice of the their intention to take the child from the Sydney metropolitan area during such school holiday period and to give effect to this order such party shall give to the other:
i.the duration of the child’s stay outside the Sydney metropolitan area which is defined as being within a weekend return drive from Sydney;
ii.the place of stay including particulars of address and contact number;
iii.particulars of care arrangements for the child;
iv.the identity of anyone supervising the child other than the mother or father;
v.flight particulars and any other relevant details;
vi.confirmation that the other party is able to contact the child by mobile telephone and that the party taking the child on holidays as provided for in this order shall do all acts and things to ensure that the mobile phone is always available for the child to receive or make telephone calls to the other parent.
(o) relocation
(i)either party is not to relocate from where they live without forthwith first furnishing to the other written notice of the change of address and telephone numbers where they can be reached and shall also ensure that each party gives a land line and mobile phone number to allow the child to be contacted at all relevant times.
(p) suspension of orders
(i) relevant orders be suspended:
i.during such times as the child is living with either the father or the mother during the school holidays;
ii.from 8.00 am until 6.00 pm on Father’s Day each and every year, even if it is a weekend when the child is not spending time with the father;
iii.from 8.00 am until 6.00 pm on Mother’s Day each and every year, even if it is a weekend when the child is not spending time with the mother;
iv. for a period of two (2) hours on the child’s birthday;
v. during Christmas Eve/Christmas Day arrangements;
vi.on the occasion of the father’s birthday or mother’s birthday or the mother’s Name Day.
vii. on the occasion of the child’s Name Day and Greek Easter.
(q) additional matters for equal shared parental responsibility
(i)each party is to immediately notify the other if either child is seriously ill or is to be admitted into hospital at such times as the child is living with that party.
IT IS NOTED that publication of this judgment under the pseudonym Korban & Korban is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4503 of 2004
| Mr Korban |
Applicant
And
| Mrs Korban |
Respondent
REASONS FOR JUDGMENT
Proceedings
Decisions are required about the arrangements to be put in place for the parties’ daughter, who will shortly turn 7 years of age. While her parents have agreed about the details related to other times and certain issues around parental responsibilities, they have not been able to agree about the extent of time she will spend with her mother during school terms.
Putting aside school holidays and special occasions, it is now the father’s application for her to spend time with her mother every second weekend from Friday after school until Monday morning and, preceding the weekend she does not go to her mother’s, after school and overnight on those Thursdays. The mother’s proposal for school terms is in two stages: to be operative for a number of months until the end of this year, the first is for each alternate week from Thursday after school to Monday morning and overnight on the other Thursday; thereafter, week about.
Thus it will be apparent that the difference relates to a period of around about 40 weeks of the year limited to school terms during which the father is proposing 4 nights a fortnight and the mother is proposing 5 nights a fortnight as a preliminary to 7 nights a fortnight (effectively) from early next year. Otherwise there will be equal time during school holidays and there will be a variety of special occasions of one kind or another throughout the year.
Discretion
In exercising the discretion involved in making those decisions, the Act designates the best interests of the child as the paramount consideration and stipulates those best interests are to be determined having regard to certain ‘primary considerations’ and ‘additional considerations’ under the span of stated objects and underlying principles. In the evidence given in this case, not all of those considerations have become relevant but those that are will be discussed in due course.
That said, the Act imposes a presumption about best interests, which is referable to parental decision making, and that may have consequences for decisions about the child’s time. The presumption is that it would be in the child’s best interests for the parents to have equal shared parental responsibility. If it is not excluded on reasonable grounds for believing a parent has engaged in child abuse or family violence and it not rebutted by reason of being contrary to the child’s best interests, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent. If so, that order is to be made. If not, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable to spend substantial and significant time with each parent and if so to make that order.
Many of these markers, all of which are secondary to a finding of best interests, are further defined by the Act. For example, ‘substantial and significant time’ requires that the child spend with their parent days that fall on weekends and holidays and those that do not, allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and also allows the child to be involved in occasions and events of special significance to the parent. What is ‘reasonably practicable’ is determined by having regard to a number of factors: the distance between the parents’ residences, their capacity to implement an equal or substantial and significant time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child, and such other matters the court considers relevant.
In this case, it is agreed there will be equal shared parental responsibility, which appears to be appropriate to all of the circumstances, and therefore equal time will be considered as an outcome – a necessary step anyway given the mother’s application that it be introduced some months hence after a more immediate increase in the current time arrangements.
Evidence
The parents own evidence was quite detailed in relating some areas of the past though not particularly extensive. But not all of it was the subject of cross-examination or of mention in closing submissions which was appropriate to the breadth of the case reflected in the parents’ positions as finally put. Rather, in both the exploration of the evidence and in the closing submissions the focus was centred upon narrower issues than had been canvassed in the affidavits and these reasons will follow that lead. It is not a case where reliability of their evidence or their veracity was made an issue and so it will not be necessary to discuss and make findings about credit.
They each called evidence from witnesses though only the father’s wife was required for cross-examination. There was also evidence from a court appointed expert, Dr R, psychiatrist, who had a rather limited brief and was not required for cross-examination, as well as from a Family Consultant, Dr F, who provided a report in December last year and gave further evidence at the hearing. I shall come to the substance of their evidence shortly.
The record of the background to follow can be taken to be the more central facts upon which the decision rests. The evaluation of it and associated assessments will be recorded as required.
Parents’ relationship
The husband (35) and the wife (39) married in December 2000 and the child was born in May 2001. They separated in March 2004 though they remained living in the family home for a short time before the father withdrew and went to live elsewhere. They were divorced in October 2005, some months after consent orders were made about their property settlement.
The father married his present wife, Ms K, on 4 March 2006. She has two children – A (10) and M (7) – who live with her and, by his choice, have little contact with their father. The mother has not re-partnered.
Child’s care
After the separation the child initially remained living with her mother. But her mother had serious problems as a result of alcohol abuse, before and after separation, ultimately with serious life threatening consequences arising from cirrhosis of the liver, oesophageal varices and pancreatic cyst. In July 2004 she attempted suicide by throwing herself beneath a train after leaving the child seated beside a woman on the train platform. After this the Department of Community Services became involved and she was taken to B Facility where she remained for a week before going to stay at her mother’s home with the child. Later, police took her, handcuffed, to a psychiatric ward at the Royal Prince Alfred Hospital where she remained for a number of hours before release. In November 2003 she had been charged with driving with a mid-range PCA (later convicted) and in early January 2005 she was charged with driving with a high range PCA (also later convicted). In September 2005 she lost her licence for 5 years and will not be entitled to regain it until January 2010. To return to earlier events, in late February 2005 she entered a three week in-patient intensive detoxification program at a hospital and from there she began treatment for alcoholism and its consequences, including attendance at Alcoholics Anonymous and regular consultations with a psychiatrist, Dr B.
In the meantime, in December 2004 the father instituted these proceedings, the child went into his care shortly thereafter and she has remained living with him since. The mother had no contact with the child until March 2005 but arrangements were put in place for the child to spend time with her mother, initially supervised and later without supervision as she established and maintained sobriety and continued treatment for alcoholism.
The first of those arrangements was pursuant to interim orders made on 18 January 2005 providing for the child to live with her father and spend time with her mother each Saturday from 9am to 5pm and each Wednesday from 9am to 1pm, those occasions to be supervised by the maternal grandmother. Later interim orders made by consent on 15 August 2006 provided for regular unsupervised time progressing to alternate weekends from Saturday mornings to Sunday afternoons and for several hours on Thursday afternoons. No provision was made beyond the end of 2007 but it was agreed the arrangements would continue according to those orders until the finalisation of the hearing. In addition to those times over the past year or more, by agreement the child has spent block periods during school holidays with her mother, including 8 days or so in January 2007, again in January 2008, and there have been other holiday periods. During these times her mother has taken her to the Gold Coast, Broome, Melbourne and Huskisson. To support these arrangements, her father takes her to and from her mother’s save for Thursday afternoons when her mother collects her from school.
Along with her two step-brothers, the child attends a private school run by the Greek Orthodox Church where she is in year 2 and, according to her school reports, she is progressing well. Whichever home she is in there is regular, indeed daily, telephone contact with her other parent [in the father’s case often also with her step-mother and step-brothers].
Mother’s health
Given its prominence in the history, it will be convenient to discuss here the evidence related to the mother’s health.
Dr B has treated her since July 2005. To his affidavit he annexed several reports prepared over time, including an earlier report in 2005 obviously directed to the drink driving proceedings she was facing that year. In summary, that earlier report reflected the mother’s significant problem with alcohol dependence and earlier life threatening emergency arising from liver damage caused by excess alcohol, but noted her motivation to abstain and seek necessary treatment and reinforced the need to abstain from alcohol. In the second report he expressed the opinion there was no reason for her not to have unsupervised time with her daughter. In his report of November last year, which is along the same lines, he commented she had done ‘exceptionally well’, she was functioning very well and was free of all symptoms, and she remained highly motivated. He said he did not see any problem about her having joint custody of her daughter - but of course that opinion is to be read in the more limited context of his involvement and could not be taken to be of any weight in considering the many factors that must be addressed in a decision on that topic.
Dr R saw the mother in July last year when he also reviewed certain written material, including documents filed in these proceedings and a number of medical reports and hospital records. Having seen only the mother, it was not his task to evaluate relationships or to advance an opinion about what might be consistent with this child’s best interests. His aim, as he recorded it, was to address a number of issues: the mother’s parenting capacity; any relevant clinical psychiatric history and background; any physical condition that might impact on her psychiatric condition; and make recommendations about the management of any psychiatric condition.
In his report he recorded a brief background and the history taken from the mother which traversed several areas of her past and included reference to suicide attempts she made in 2004, several admissions for detoxification during 2005, and a relapse with alcohol in December 2005. She reported abstinence from that point, daily attendance at AA, regular medical checks and compliance with prescribed medication, and that she had seen a counsellor in 2005 and 2006. He diagnosed alcohol dependent syndrome from which she had alcohol related complications including pancreatic cyst, oesophageal varices and cirrhosis of the liver, but in his opinion no psychiatric condition. He noted her depression to be secondary to alcoholism and social problems and he commented that for the previous 18 months she had made a ‘dramatic transformation’ and had very successfully rehabilitated herself from alcohol dependence without recurrence of depression or suicidal behaviour. He said her alcohol related physical complications had been improving and her mental health and wellbeing had been restored. He assessed her as capable of being a healthy, caring parent and, while he acknowledged the history reflected risk to the child’s safety when her mother had been drinking alcohol, there was no evidence she had been irresponsible or placed her daughter at risk when sober. He expressed agreement with Dr B that if she is able to remain abstinent from alcohol her ability to parent the child is ‘excellent’.
He concluded his summary with the observation that alcohol dependency is an extremely difficult condition to treat and to recover from, there are usually relapses, particularly in the early stages of the abstinence process, though these become less frequent as time passes, adding: ‘After approximately 3 or 4 years of abstinence the rate of relapse becomes quite low. It seemed that [the mother] has been in the process of rehabilitation for between 18 months and two years. She is therefore progressing well along her rehabilitation pathway.’ This reference to 3 – 4 years assumed some significance in the submissions put for the father in the context of risk of relapse.
As for his recommendations, Dr R said he was impressed by her dedication to AA, which he described as probably the most successful alcohol rehabilitation process, and he supported her involvement there. He said it would be in her interests to be supervised by a psychiatrist and/or drug and alcohol counselling service, she should continue to be monitored for her physical health by a general medical practitioner in conjunction with a gastroenterologist as necessary, and she would benefit from some individual counselling about the court proceedings and process. He also supported her having a ‘major involvement’ in the child’s life and expressed the belief she is capable of parenting the child effectively as long as the alcohol treatment measures are in place, though he said he could not comment on what arrangements should be in place for her daughter, obviously.
In his evidence Mr W related having met the mother at AA meetings in January 2006 and he corroborates her sobriety throughout that time, at least so far as it could be said he had been able to observe.
As I find, the mother has maintained sobriety for almost 2 ½ years and she has implemented the recommendations of Dr R by maintaining her constant involvement in AA, consulting regularly with a psychiatrist, and having her physical health monitored regularly by a general medical practitioner. All of these are solid indicators pointing to a steady path to rehabilitation and to a more positive future, all to her enormous credit considering the depths of despair and depression she must have been experiencing back in 2004.
While recognising the progress she has made, it would be naïve and wrong to say there is no risk of relapse, whatever the strength of her own commitment to the contrary. Of course there must be a risk. On the unchallenged research related by Dr R she is still in a vulnerable period before the level of risk can be said to be ‘low’ and plainly the risk of relapse brings with it the risk of harm for her daughter if she were to be in her mother’s care in that event, a conclusion that requires no elaboration.
The question here is more what is the level of risk and whether it can be said to be ‘unacceptable’ and therefore intrude in a significant way on the arrangements that could be seen as consistent with the child’s best interests [see High Court discussion in M and M (1988) 166 CLR 69 ]. As I find, the answer lies somewhere between ‘no risk’ and ‘unacceptable risk’ and probably more towards the former than the latter although Dr R’s evidence requires it be placed not so close as to be regarded as ‘quite low’. This finding is supported not only by his observation to that effect but also from a consideration of the length of time the mother has been abstinent, her compliance with Dr R’s recommendations, including the important commitment she has to regular if not daily attendance at AA, and the other supports she has around her, including her sponsor through AA and her mother’s involvement in her day to day arrangements as reflected in that unchallenged evidence.
Current and proposed arrangements
Each parent has given quite detailed evidence of their current arrangements and the daily routine put in place for the child while in their care. While that has been read and considered, a brief summary will suffice.
Father
The father and his family live in D in a home he owns in relatively close proximity to the school the children attend. He is a professional by occupation and works 5 days a week (which includes Saturdays, he takes Wednesdays off) and he works Sundays once per month. His wife, Ms K, works in an administrative position 5 days a week, Monday to Friday. Between them, depending on the day, either will drop the children at school in the mornings and they are collected and cared for after school either by the father or the children’s grandparents, depending on the day.
The children are variously involved in dancing, soccer or cricket and there is a co-operative, shared arrangement to see the children’s commitments in these areas are met. Domestic duties are shared proportionately and the children assist with designated tasks. There are social activities as a family, outings, and visits to friends and relatives. Homework, for the child at least, is received for the week on Mondays and it is completed by Wednesday evening for handing in on Fridays. Amenities are provided to assist the children with their education and they have bikes and other things at home. The family regularly attends church and they are observant of their faith.
None of this is brought into question and it generally depicts a picture of a close-knit family that is oriented towards the children’s needs with an easy connection to a wider extended family, friends and the community.
It is the father’s proposal that these current arrangements continue, subject of course to the increase in time he is proposing the child spend with her mother during school terms. In this he is supported by his wife.
Mother
The mother owns two units [unencumbered], she lives in one at D and she rents the other at M. The child has her own room which has been decorated for her. Her home is in relatively close proximity to the father’s. Since February 2006 she has been employed as a public servant with a Commonwealth Government Department and now holds a permanent position. She contributes financially to the child’s upbringing by paying a portion of her school fees and school requirements.
Working a 37.5 hour week, her hours are flexible and can be taken and made up as required. She finishes work early on Thursdays to collect the child from school or be home when her mother collects her. Voluntary work is recognised by her employer and in July/August 2007 she volunteered to work in the school canteen on a rotating basis and in 2007 did one day on the roster. Without a driver’s licence, she relies on public transport but her evidence is to the effect this accommodates her current arrangements related to attendance at work and collecting the child from school and caring for her. She has support from her mother with her current arrangements.
As noted earlier, she continues to attend AA at least 5 times a week and sometimes more and she continues to consult her psychiatrist and have regular checks on her health.
She gave a detailed account of the routine and activities undertaken with the child since the introduction of the current arrangements in the August 2006 orders. Recreational activities she provides include make-believe games, swimming, Greek dancing, music, outings to the pool and library, bike riding, walking, shopping, and visiting friends and relatives amongst other things. All of it has the hallmarks of being age appropriate, child oriented and designed to provide an environment that is entertaining, stimulating and comfortable. She also sets out in considerable detail what she sees as her role in the child’s development, including her part in developing her language, fostering her love of books, reading and writing, number skills, science and nature, art and craft, and homework. As for the latter, she does not assist directly with it because it is completed by the time the child comes to her on Thursdays or Fridays, but she does buy workbooks and obtains readers for her from the library. It also includes assistance she gives to the child with what she calls ‘feminine issues’ and she describes her involvement in the child’s interest in dressing up, choosing outfits, playing with make-up and nail polish, how her hair is done and so on. Similarly, all of the various engagements described are fitting and appropriate.
Her proposals for change are in two stages but the shifts in her arrangements necessary to accommodate both stages are common. She will continue to live where she does now at D. She acknowledges the child is progressing well at school, she has friends there and the father’s wife’s children [her step-brothers] also attend there. Her work has sufficient flexibility to enable her to see to the child’s needs; she would take her to school in the mornings and collect her in the afternoons and make up the lost hours in the time the child is with her father. She would be able to take the necessary time off during school holidays as she has four weeks paid leave annually and can take personal leave without pay during the other time, as she did during block times she has had the child in her care since 2006. She would see that the child continues with her dancing classes on Wednesdays after school and any other activities the parents agree about, including swimming lessons. She will continue to attend AA meetings regularly, but when the child is with her she will attend lunch time meetings near her workplace rather than at other times. The support from her sponsor will continue, as will her consultations with Dr B and her general medical practitioner.
The evidence of her mother relates in part to her role in arrangements related to the child and her intention to continue supporting and assisting her daughter if the child were to be living with her. It is accepted her support and assistance would continue to be available.
Family Consultant
Dr F provided an ‘updated’ report after consultation with the child and relevant adults on 12 November 2007 and reading certain material set out in her report along with a copy of a later report from Dr B. An earlier report from a Family Consultant who had since left the employ of the court was read by her but was not introduced into the evidence here. My preliminary ruling excluding it - for reasons related to the unavailability of the author, dispute about the fairness of its admission in that event, and uncertainty about the extent of its relevance at that early stage - specifically provided for the issue to be revisited later in the hearing should it be thought desirable or necessary, but counsel did not raise it again and so the earlier report is not in evidence.
The reporter gave a brief outline of the background, a summary of her interview with each of the parents and the father’s wife as well as a brief record of some observations before offering her recommendations that the parents have equal shared parental responsibility and:
‘25. It is recommended that [the child] continue to live with her father for the next 12 months and spend increased time with her mother. She could spend alternate weekends from Friday after school until Monday before school with her mother and each Thursday overnight. She could spend half of the school holidays with each parent and share special days.
26. It is recommended that, after a period of 12 months, if [the mother] maintains her sobriety, [the child] spend equal time with each parent on a week about basis.’
It will be apparent from what has been said earlier that the mother’s application is aligned with this recommendation whereas the father opposes equal time and proposes an arrangement that is one Thursday night per fortnight less than the forerunner to it as per paragraph 25. Reading the report, the basis for the recommendation of increased time per paragraph 25 was not explicitly stated but can be inferred as linked to the paragraphs which follow the account given of the interview with each of the three adults in paragraphs 4 – 18. Moving from there, the reporter notes at paragraph 19: ‘Throughout the day of interviews, there were indications of a civil and cooperative relationship developing between the father, stepmother and the mother. It appears that the adults will endeavour to work together more cooperatively in the future for [the child’s] benefit.’ Then at paragraph 20 she noted: ‘[the child] was able to move freely between the three adults on the day of the interviews and she actively tried to get the adults and her step-brothers together during the course of the observations. [The mother] interacted well with [Ms K’s] sons, [M] and [A] and, by the end of the observation, [Ms K] joined [the mother] and the children in the painting room.’ Then at paragraph 21:
‘21. The Family Consultant’s observations on the day of interviews do not suggest any deficiencies in the mother’s capacity to parent [the child]. Neither the father nor the step-mother raised any concerns about [the mother’s] capacity to parent, except for their fear about the possibility of [the mother] relapsing with her drinking problem. Consequently there does not appear to be any reason, at this point in time, for [the child] to not spend increased time in her mother’s care, so long as [the mother] continues to maintain her sobriety. [emphasis added]
22. There are strong indications that [the mother] is committed to her recovery, has good support systems in place and has had stable employment and living arrangements for a long period of time.
To this point the recommendation for increased time can be seen as having a basis. As for the period it would be in place, the reporter explained in her oral evidence that the 12 months recommended was to provide the mother and the child with time to adjust gradually to the change, for there not to be too much stress, and for the mother to maintain her sobriety while having increased care of the child. Pressed about her selection of 12 months – Dr R’s 3 – 4 year period of sobriety related to risk of relapse was put to her a number of times – the reporter repeated she knew nothing about the research on the topic and that her recommendation about time was not related to that but related to issues of adjustment and the mother’s ability to cope. The period she designated was a suggestion, it was just one option, and it was for the court to decide if it was an appropriate period.
There follows in her report the passage that is referable to the later introduction of equal time and appears to be the support for that recommendation:
‘23. Consistent with the recommendations and evaluation in the previous Family Report, an arrangement whereby [the child] spends equal time with both parents is still considered optimal, as well as practical and appropriate, so long as [the mother] continues her recovery in the manner in which she has for the past two years.’
This opinion was given no explicit support other than the previous Family Report which is not in evidence, and in any event the reporter did not state her own underlying conclusions or views that later equal time would be optimal, practical and appropriate on the contingency stated. It is a gap that calls for explanation and she was asked for it. She nominated two considerations. The first is that there would be fewer changeovers. As she explained, this was not so much as to reduce ‘conflict’ [a commonly viewed contra-indicator to the recommendation of equal time] but related more to practical things to do with the child and there would be a longer time when the child could feel more settled. The second is her assessment of the child as strong willed. Voicing some concern about the future, she sees the child’s wish to spend ‘more time’ with her mother, for her age, as so strongly expressed that if she keeps on wanting to have the ‘same time’ with each parent it will cause the parents to continue to have conflict and in her view the child will not give up or let go of it.
Putting that aside momentarily, it would be fair to recognise that while the reporter did not identify wider considerations than these when asked directly for the basis of her equal time recommendation, obviously her ultimate view would have had regard, to one extent or another, to opinions she gave in other areas. For example, she obviously took account of the child’s separation for the period proposed from her step-brothers with whom she has a close relationship, though the reporter noted they attend the same school and therefore would see each other there. She would also have taken account of the practicalities involved in the mother being required to see to her arrangements by taking public transport, which the reporter saw as not posing a problem. As well, other answers she gave indicated she had given consideration to the father’s concerns about the possibility of relapse with alcohol, though she commented to the effect there was some shortcoming in the information on which that was based. Also, she said she believes if an order is made for equal time the father and his wife would support it. Probably with the benefit of reflection she might even add other considerations she weighed.
There was nothing in the report of the child saying anything about her wishes or views and nor was there anything in the report from either parent relaying the child’s statements to them about her views. Before being asked about this topic, the reporter had referred to the child wanting ‘more’ time with her mother; there had been no mention until taken to this line of questioning of the child wanting the ‘same time’ with each parent. Nonetheless, she said the child had expressed a desire for ‘same time’ when interviewed on her own and she also said the child was able to recognise the concept of a week, this apparently being referable to ‘same time’.
Asked to identify the contra-indicators considered in formulating her recommendations, the reporter said she had thought about communication issues but while there had been some difficulties in this area she assessed all of the adults as able to communicate and there had been some areas of agreement between the parents. The other contra-indicator was the prospect of the mother not maintaining her sobriety. Asked whether it included the child’s young age, she said the child is almost 7 years old and aware of the time issues. She readily agreed the geographic proximity of the parents’ homes would need to remain to make the proposal workable though I should say no evidence emerged of any change foreshadowed there. She was also taken to the report of Dr McIntosh and Caroline Long published July 2007: “The child Responsive Program, operating within the Less Adversarial Trial: A follow up study of parent and child outcomes”. Their research was referred to by Brown J in Seaford & Seaford [2007] FamCA 1460 where at paragraph 123 her Honour captured the core findings [footnote omitted]:
‘I am mindful of the recent research of Jennifer E. McIntosh and Caroline Long, published by Family transitions as The Child Responsive Program, operating within the Less Adversarial Trial, July 2007. That report deals with data from 77 parents from 54 cases determined in this court (by consent or judicial decision) who responded to a follow up survey four months after determination. At p.18 the authors noted that the data offers an important caution within the current climate of obligation to consider whether spending equal time with each of the parents (or substantial and significant time) would be in the best interests of the child. The data suggests that a significant proportion of children emerged from court under conditions that meant substantially shared care between their parents posed a psychological strain on them. The study identified key predictive factors that need to be looked for and given weight in recommendations (and court orders) around substantially shared care. The authors noted (at p.18-19) :
“In essence, emotional difficulties emerge most strongly for the young child (aged under ten) living in shared care when :
· The care climate is marked by apprehension about the child’s safety,
· At least one parent reports a poor relationship with the child,
· An alliance between the parents is absent,
· Considerable levels of inter-parental conflict remain present, and
· The child is unhappy with the substantial division of their time and life.
With these variables all operating simultaneously, the levels of anxiety and worry evidence in these children are of little surprise.
It is equally important to note that substantially shared care was not (emphasis in original) associated with poor outcomes for children when parents were cooperative, conflict well managed and parent-child relationships were reported to be strong or considerably improved post Court. The issue is not that shared care is harmful per se, but that the regular movement of children through a cross-fire of acrimony between parents who do not cooperate, brings accumulating and damaging levels of stress to children who are imperfectly, if at all, shielded from that discord.”
The reporter said she did not think this had any application in this case which she described as ‘not a high conflict’ case – though not ‘perfect’, as she put it, the parents here are able to communicate.
The reporter’s conclusions and opinions stand to be taken into account and weighed with all of the other evidence. To the extent there are any meaningful shortcomings in the basis for her opinions, they attract less weight than otherwise might be the case given her experience and expertise and the important advantage she had, unlike the court, from interviewing the parties outside the courtroom setting and, more particularly, seeing and speaking with the child. It will be necessary to return to this later.
Best interests
I turn now to the factors underlying the evaluation of best interests in so far as they are relevant here though the discussion and findings can be expressed briefly.
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Reflecting as it does in large part one of the objects of the parenting provisions of the Act, it is self evident that if the child has a relationship with both parents that is ‘important, significant and valuable to the child’, as Brown J interpreted ‘meaningful’ in Mazorski v Albright [2007] FamCA520, then that would accrue to the benefit this child. That does accurately describe this child’s relationship with each of her parents and therefore the conditions for that to be continued and supported need to be available insofar as it is not overborne by other best interest considerations.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Risk of physical and psychological harm to this child would arise from exposure to any relapse by her mother into drinking alcohol and from the associated depression. The very serious state of her condition in the past and aspects of her daughter’s exposure to it has already been outlined, the risk of relapse discussed, and an assessment made of the level of that risk. It need not be repeated here.
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
This has assumed an importance in this case and some of the evidence about it has been discussed already, but it is also necessary to pick up what the parents have said about it in the course of their evidence.
According to the father, the child has never expressed to him the desire to live with her mother; however, he readily agrees she wants to ‘spend more time’ with her mother. In his oral evidence he gave examples of things the child has said on return from her mother’s, indicating a awareness of the upcoming court proceedings and suggesting she had been given the idea she would be living with her mother [eg. relating her room had been painted] as a result.
The mother’s affidavit sworn on 2 April 2008, on the other hand, set out various statements the child had made to her. She gives this account of an exchange with the child on 17 March 2007:
‘117. When [the child] was spending time with me at my home on Saturday, 17th March 2007 [the child] said to me:
“Mum, can you tell [the father] that you want me to stay here all the time?”
I said to [the child]:
“What do you mean little one?”
[The child] said:
“I want to spend time at dads but I really want to stay here with you forever.”
I said to [the child]:
“Okay sweetie. I will ask him.”
There was nothing said about any follow up, either with the father or with the child. She also relates the child saying to her approximately once a week for the last two years words to the effect:
“158. Mum I love living with you and spending the night here”
and many times over the past 2 ½ years the child has said to her:
“I want to spend more and more time with you as well as spending time with dad.”
Also related in paragraph 158, on 17 March 2008 when she took the child to school for the first time the child said:
“Mum I wish you could take me to school every Monday and pick me up in the afternoon from school every Monday just like today”
and
“I love to go away on holidays with you. Can we go to the dessert (sic) again because I love riding on the camels”
and
“I love being on holidays with you because it means I get to sleep more days with you than I do on the weekend.”
That was the extent of her affidavit evidence on the topic. In her oral evidence she said the child had said many times in 2006 and 2007 and as late as December 2007 that she wanted to spend ‘equal time’ with her parents. It will be noted there is nothing matching this in her affidavit evidence.
That aside for the moment, she also said in her oral evidence that around the time of the Family Report the child said to her ‘even if you decide not to fight for me you will be sad forever’ explaining that if she does not ‘fight to have her back she will be sad’. Taken back to this evidence later, the mother said the child might not have used the word ‘fight’, her statement came out of nowhere and she was very surprised, it sounded very adult.
In cross-examination it was put to her that the child had said nothing that could be described as a rationale or given a basis for saying she wanted equal time. The mother’s response was to relate what the child had said to her about seeing her mother help older people; namely, she likes her mother helping older people, adding ‘[…] [her father] will not do that’. As she explained it, she did not see this as the child criticising her father but that she is intelligent enough to see her parents are two different people and she can benefit from both. She also said that the child feels more comfortable telling things to her rather than to her father or his wife, adding ‘many times [the child] will tell me something and ask me not to repeat it [to her father]’. When it was suggested later this response might leave the impression of collusion against the father, she said she determines the situation first to see if it is something the father needs to know, but mostly it [what she is asked not to repeat to her father] is to the effect ‘that she wants to spend a lot more time with me and she would like to live with me’ and [the child] needs to see she can trust her.
On any objective analysis, a finding about the views of this child is beset with imprecision and uncertainty. In so far as that relates to the mother’s evidence, it is difficult to see why her recent affidavit would include other statements the child has said about her future living circumstances yet exclude her many statements about wanting ‘equal time’. Of course things are omitted from affidavits, but it could not have been doubted the child’s views are an important strand to her case and the evidence ought to have been given clearly and accurately if it was to be given at all. As it is, the evidence runs from ‘more time’ to ‘equal time’ to ‘live with’ her mother. For present purposes the first can be taken as given because there is no issue about it. The second is consistent with the reporter’s oral evidence at the outset of the hearing and came into the oral evidence of the mother’s later. While unsatisfactory, I will accept the child’s views to be for an ‘equal time’ arrangement. I will also accept the reporter’s assessment that the child’s statement to her did not strike her as being the result of ‘coaching’. Of course that says nothing about the more benign influences that surround a child aware of pending court proceedings and what each parent wants to achieve, as this child plainly is.
That said, there remains the question of weight to be given to the child’s views and the likely impact of not giving expression to them. Obviously despite the child being just 6 ½ years of age when interviewed last year, the reporter was impressed by her strong will, her resilience, and her intelligence as well as her ability to understand time concepts. She also concluded that if the child’s wish for ‘same time’ was not translated into reality the child may not give up or let it go and that would prolong conflict between the parents. This renders this consideration a weighty factor, though not so weighty as to make it a determinant, to be taken into account with all other factors.
(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)
There is no suggestion from anywhere that the child has anything other than a close and loving relationship with each of her parents.
Since the age of 3 ½ years the child has lived with her father, now for 3 ½ years, and in that time she has formed close relationships with her step-mother, and her two step-brothers, A and M.
Her father and step-mother describe her as being a bit ‘distant’ with her step-mother when she returns from her mother’s, but it does not last too long before she returns to her normal self. Probably their evidence about this is accurate because the affidavits contain accounts of unpleasant events at certain activities where the adults have been together in the child’s presence and she would not be unaware of the strain between her mother and the father’s wife. She calls her step-mother ‘Mum’, as well as addressing her by her first name, and this is not discouraged or seen as out of the ordinary by either her step-mother or her father who both say she fully understands the difference.
(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
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
[(4)…..the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent …..]
Neither parent has been shown to be unwilling or unable to facilitate and encourage a close and continuing relationship between the child and her other parent. Putting aside the earlier events surrounding the mother’s alcoholism and her consequent depressive state, each has fulfilled their responsibilities as a parent. However, there have been shortcomings in their communications as parents. At an earlier time, the unsettling events surrounding and following their separation obviously affected their ability to communicate effectively and resolve by agreement the serious difficulties surrounding their daughter. Things have moved on since then and over the last couple of years communication has improved. It is not ‘perfect’, as was observed elsewhere, and difficulties do remain - the evidence reflects many episodes to support that: about provision of information to the mother by the school; trips out of the State resulting in a stream of correspondence between solicitors; difficulties are referred to by the mother with telephone arrangements and references are made to breaches of court orders; the child was not taken to compulsory liturgies; and there have been unpleasant episodes at events such as swimming lessons, gymnastics, the Christmas pageant, the Easter parade, and at the school play there was some ‘yelling’. The cooperation observed by the reporter on the day of the report interviews is not entirely consistent with either the picture this evidence paints or the stony or resentful tone conveyed in the course of the hearing. Nor has the more positive future foreshadowed at the report interviews really come to pass; for example, there is no improvement in the communications between the mother and the father’s wife who describes the mother as not returning her greetings when their paths cross.
Nonetheless, there is a style of communication – as the mother describes it, while they do not really discuss matters they communicate generally by email, she would be willing to continue with the communication book if that is what works, and if there is an emergency or an urgency they are able to speak by telephone.
(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
On each proposal there will be changes for the child. The mother’s proposal would involve more change in the relatively short term but more significant change on the move to equal time in school terms.
As for the likely effect on the child, that is not easy to assess at this stage. With the father’s less extensive change, it is very likely she would cope quite well; she would have extra time with her mother by extending her current weekend time from Friday afternoon to Monday morning, giving her three continuous nights with her mother instead of one and there would be another overnight stay on Thursday of the next week. On the mother’s interim proposal there would be an extra night to make the ‘weekend’ four nights and the likelihood is that she would also cope with that. Both arrangements would deliver more time with her mother. But the move to equal time by week about after a number of months, I find more problematic. However, as that is a key decision based on the weighing of all best interests considerations I shall return to discuss that later.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is of no particular relevance other than what has been discussed elsewhere.
(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
There are no concerns about the father’s capacity to provide for the needs of the child. He has provided for her well in the time she has been in his care, now 3 ½ years, including seeing to her emotional and intellectual needs. That finding encompasses his support for her relationship with her mother and his compliance with the orders surrounding the arrangements for her to spend time with her mother. He is not without criticism of the mother, as noted in paragraph 9 of the Family Report; however, he does not stand alone on that score because it is apparent from the mother’s evidence that she too is critical of him. But to this stage at least the child has a close and loving relationship with each parent and, if that is any indicator, the negativity has not been such as to undermine that.
As for the mother’s capacity to meet the child’s needs, plainly her parenting capacity was seriously impaired for some time up to the end of 2005. However, there is no current cause for concern, although Dr R’s evidence suggests she cannot be seen as out of the woods yet. Nonetheless, subject to that, it is accepted she is a capable parent who wishes to take a greater responsibility with their daughter’s upbringing than is available to her now, and she is able to do so.
(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
At almost 7 years of age this young girl is likely to share a lot of things in common with her mother and to seek her input and guidance about many matters, particularly as she gets older. She may very well be able to seek her step-mother’s assistance but it would be completely understandable if she looked to her mother first and foremost. The extent of her time with her mother, and also her opportunities to communicate with her mother, need to take that into account.
Both parents are of Greek background and both are fluent in Greek. They speak to the child in English and Greek. To the child’s enormous advantage she understands Greek and speaks Greek to her maternal grandmother. Whatever the arrangements put in place now, she will have the benefits this delivers.
(j) any family violence involving the child or a member of the child’s family
(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
Allegations of violence were at one time an issue and incidents which occurred some years ago were referred to in the evidence, but the issue did not feature in the running of the case and no submissions were made about it.
(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
There is a certain tentativeness about the recommendation of the reporter for the initial stage of increased time to move to equal time – its purpose being related to adjustment and coping. If that does not occur satisfactorily for some reason or another, further proceedings would no doubt follow. One option would be to cater to any uncertainty in adjustment and coping by directing a review before the equal time recommendation were implemented, but that would mean the proceedings would remain on foot rather than conclude now. While that is a consideration, it is not desirable given the course the proceedings have taken so far and more particularly it would have the deleterious effect of maintaining for the child uncertainty about her future arrangements between her parents.
Equal time
As noted earlier, the parents are to share parental responsibility and it follows, quite apart from her mother’s application, consideration must be given to whether it would be in the child’s best interests and reasonably practicable for her to spend equal time with each parent.
Best interests & reasonably practicable
As for the best interests component, that is to be seen through the relevant considerations discussed, bearing in mind the stated objects and principles. Those matters are markers to the whole range of possible decisions about a child’s best interests and are not directed specifically to the decision about whether a child’s best interests would be served by an equal time arrangement, on the one hand, or something falling short of it, on the other. In other judgments I have reviewed cases over the years, both single instance and appellate, where consideration has been given to children spending equal time between their parents and I see those cases as unaffected by the amendments to the Act from 1 July 2006 [see M & M [2005] FamCA 207 and Handley & Tranter [2006] FamCA 344]. There may be others but the cases reviewed are Jann v Yann (1976) FLC 90-027 at 75,120; Foster v Foster (1977) FLC 90-281 at 76,511; H v H-K (1990) 13 Fam LR 786; Padgen v Padgen (1991) FLC 92-231; Forck v Thomas (1993) 16 Fam LR 516; unreported decision of the Full Court (15 April 1997) in C v B; F v B [2000] FamCA 676; McGlynn v McGlynn, unreported 13 December 2001 per Le Poer Trench J; M v G, unreported 15 July 2003 per Kay J, and H v H (2003) FMCA Fam 41. Without repeating the earlier discussion, the conclusion I reached is this:
‘These decisions do suggest that some careful deliberation is necessary in considering an arrangement whereby children spend their time moving between the households of their separated parents in equal or approximately equal proportions of their time. They also suggest that to be workable and of benefit to the child, desirable environmental factors include compatible parenting values; mutual respect as parents; good parental communication, trust and cooperation; an ability to compromise; geographic proximity between their residences; the age of the child has to be considered and the ability of the child to cope with the arrangement without stress or confusion needs to be taken into account; concrete issues related to upbringing such as manner of education and the like ideally would have been resolved; and there are no destabilising influences such as might be present when one or both parents re-partner. Without these factors, the arrangement may contain the seeds of harm from inconsistencies in influence, activities and life values, all of which have the potential to disorient and destabilise children. The purpose of any arrangement, after all, is to promote their welfare overall and not to satisfy the needs of their parents.’
Obviously these considerations or something similar are not a checklist requiring 100% or even a preponderance of positive scores before equal time could be seen as aligning with a child’s best interests. Where they are found to exist, it will also be questions of degree which might range from relatively benign to plainly damaging. As I see it, they all seem to be based on the fundamental premise that whatever household a child grows up in or whatever households the child moves between throughout their developing years, a sense of continuity and commonality is a desirable thing for a child and likely to promote the child’s best interests. So absent guidelines about it, I see it as appropriate to ask questions of this kind in discharging the obligation to ‘consider’ an equal time arrangement or in assessing a proposal directed to that end. Obviously findings that parenting values are not particularly compatible, trust and cooperation are not present, there is uncertainty about how a child will cope, and there are destabilising influences of one kind or another, do not mean that equal time could not be in the child’s best interests on the particular facts of the case; but it stands to reason a bundle of assessments along these lines, or even the marked presence of one or more of them, would render it difficult to align such an outcome with the child’s best interests.
As for being reasonably practical, there are factors for consideration specifically set out in s 65DAA(5).
Returning to the more concrete considerations of this case, geography presents no impediment to an equal time arrangement, whether referable to the parents’ homes or to the child’s school. The weight of that here is augmented by the fact that both are loving parents who wish to have a significant role in their daughter’s upbringing and there are close relationships in place. As best the evidence reveals, there appears to be sufficient commonality of parenting values including about the manner of education and upbringing generally for those not to be particularly destabilising influences as the child moves from one household to the other. Each parent has a great deal to offer, probably in different ways as would be expected, and there should be sufficient opportunity for their daughter to take advantage of that. The child’s own views about equal time can be added to those matters to produce considerable weight in favour of equal time –as the mother proposes some months after an introductory period of increased time to ease into it. However, this child’s best interests are somewhat more complicated, even giving her views due weight; there are other considerations.
First, there cannot be ignored entirely the shortcomings in the parents’ ability to communicate and, without ascribing blame or responsibility, their evidence did not convey the impression of mutual respect or a base of trust and cooperation as parents despite their differences. Their affidavit evidence, which was sworn recently, is peppered with incidents supporting that impression. In saying that, it is recognised they have complied with the interim orders and there is nothing to indicate either would not facilitate the child’s relationship with the other in the future. It is also recognised there would be fewer changeovers with an equal time arrangement and many of the same sorts of issues that require communication - things left behind requiring telephone calls, unscheduled visits to drop things off, amongst more important decisions – may still arise whatever the arrangement. It is recognised furthermore that they have developed some methods or means of indirect communication and urgent matters would no doubt be addressed by direct discussion. Nonetheless what remains troubling is more the manner in which their responsibilities and communications would be carried into effect, marked as it is by a lack of proper regard for the place of the other as their daughter moves between their households.
Secondly, the child has been in her present arrangement with her father for 3 ½ years now and during those years she has been an integral part of a larger household with her step-mother and her step-brothers. She is involved in a whole-of-family routine which is distinctly oriented towards the children and she is part of a relatively busy family setting where, as one of three children, she is subject to all of the give and take necessary in day to day life with siblings. She has thrived in that setting and done very well.
True it is she wants a change, and if her mother’s proposal and the reporter’s recommendation are adopted equal time would be preceded by a period of increased time partly to allow her to adjust to it. But she has not had any concrete experience at this stage of either the end point or the increased time – obviously a different atmosphere prevails in each household and there must be some question about her adjustment depending on the magnitude of change. The reporter’s concern about the child being so strong willed that she will not ‘let go’ if an order is not made for equal time is borne in mind. But in the final analysis how that is addressed would come down to parental responsibility. Put another way, it is difficult to see how the child would not adjust to something falling short of equal time if that gains her mother’s support and there is no underlying message given to her to continue that quest.
Another important consideration, it has to be said, is that there remains some level of vulnerability in her mother’s circumstances at least in theory, as Dr R’s reference to the research demonstrates, and that is suggestive of some caution in introducing an arrangement that might have the potential to weigh too heavily on any underlying fragility.
In my judgment these counter-balancing considerations combine to lead to the conclusion that the child’s best interests will be served by having her continue to live for most of her time during school terms in her father’s household and, therefore, for the most part to remain subject to the same routine and parental care from which she has benefited so well to this point. I say that both as to the introduction of equal time now [if indeed the Act requires it be considered now even absent any application to that effect] and as to its introduction some months hence, either at the end of the year or into 2009.
Substantial and significant time
Turning to consider the alternative, there is not a significant difference in the proposal put by the father and the mother’s proposal [albeit interim] for another night per fortnight. Both satisfy the definition of ‘substantial and significant time’. However, the latter does have the advantage of giving to the child that extra time which aligns at least in part with the views she has expressed yet still sees her spending most of her time in her father’s care, with the routine and family environment that has stood her in good stead to now.
Considered overall, I am satisfied that arrangement – added to the equal time during school holidays and special occasion arrangements as well as frequent telephone calls - will provide her with the opportunity to maintain a meaningful relationship with both parents and is consistent otherwise with the objects of the Act and their underlying principles.
Form of orders
The parents have agreed to all but the decision just recorded and their consent arrangements are adopted and reflected in the orders set out earlier.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
4
4
1