Labine and Labine
[2012] FMCAfam 1398
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LABINE & LABINE | [2012] FMCAfam 1398 |
| FAMILY LAW – Interim parenting arrangements for care of children aged 10 & 8 – wife alleges husband has exposed children to family violence – allegations of alcohol and drug abuse – nature of interim hearing – husband alleges wife has unreasonably controlled his interaction with the children since separation – wife alleges children apprehensive about husband and unwilling to spend overnight time with him – consideration of the need to protect children from further exposure to family violence – consideration of how children may benefit from having a meaningful level of relationship with father – weighting of primary considerations under section 60CC(2) – implication of reordering of priorities by reason of amendments to the Act made by Family Law Legislation Amendments (Family Violence and Other Measures) Act – best interests – weight to be given to views of children – application of presumption of equal shared parental responsibility. |
| Family Law Act 1975, ss.4AB, 60B, 60CC, 61DA, 65DAA, 69ZN |
| Goode & Goode (2006) FLC 93-286 JG & BG (1994) 18 Fam LR 255 Amador & Amador (2009) 43 Fam LR 268 |
| Applicant: | MR LABINE |
| Respondent: | MS LABINE |
| File Number: | ADC 4187 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 17 December 2012 |
| Date of Last Submission: | 17 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hurley |
| Solicitors for the Applicant: | Barnes Brinsley Shaw Lawyers |
| Counsel for the Respondent: | Ms Pyke QC |
| Solicitors for the Respondent: | Pederick Lawyers |
ORDERS
The parties do all things necessary to commission an appropriately qualified expert to prepare a family assessment report, the identity of the expert to be agreed between the parties and failing agreement to be as nominated by the court with the parties to share equally the costs of the provision of such report and the report to be available no later than 27 April 2013.
UNTIL FURTHER OR OTHER ORDER
The children of the marriage [X] born [in] 2002 and [Y] born [in] 2004 (hereinafter referred to as “the children”) live with the wife.
The husband spend time with the children as follows:
During the forthcoming school holiday as follows:
(a)From 10:00am until 5:00pm on Saturday 22 December 2012;
(b)From 10:00am until 5:00pm on Sunday 23 December 2012;
(c)From 3:30pm on 25 December 2012 (Christmas Day) until 3:30pm on 26 December 2012 (Boxing Day);
(d)From 10:00am until 5:00pm on Sunday 30 December 2012;
(e)From 10:00am on Friday, 4 January 2013 until 5:00pm on Saturday 5 January 2013;
(f)From 10:00am on Tuesday, 8 January 2013 until 5:00pm on Friday 11 January 2013;
(g)From 10:00am on Monday, 21 January 2013 until 5:00pm on Friday, 25 January 2013.
During school terms as follows:
(a)Each alternate weekend from the conclusion of school Friday until the recommencement of school the following Monday (or Tuesday in the event that Monday is a public holiday) commencing on 8 February 2013;
(b)In the intervening week of each fortnight from the conclusion of school Tuesday until the recommencement of school the following Wednesday commencing 12 February 2013.
During subsequent school holidays as follows:
(a)From midday on 30 March 2013 (Easter Saturday) until 5:00pm on 31 March 2013 (Easter Sunday);
(b)From 9:00am on 13 April 2013 until 9:00am on 20 April 2013.
The husband be restrained and an injunction issue restraining him from consuming any alcohol or illicit drug during any time the children are subject to his care and supervision and from consuming any alcohol or illicit drug 24 hours prior to any such period.
The parties be each restrained and an injunction issue restraining each of them from denigrating, abusing or undermining the other parent or a member of that parent’s family in the presence or hearing of the children or permitting any other person so to do.
The parties be restrained and an injunction issue restraining each of them from discussing these proceedings with the children other than to inform the children of the practical consequences of the orders in respect of spending time with each parent.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
Each parent is at liberty to attend at the children’s school and sporting events all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The children are to be exchanged wherever possible at their school in order to give effect to these orders but if school is not in session the wife is to deliver the children to the husband’s home at the commencement of each such period and the husband is to return the children to the wife’s home at its conclusion.
The children’s issues be fixed for further directions before the court, following the release of the family assessment report ordered herein, on 7 May 2013 at 9:30am.
The property issues be adjourned for further directions and in order to fix a financial mediation conference, if appropriate, on 26 February 2013 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Labine & Labine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4187 of 2012
| MR LABINE |
Applicant
And
| MS LABINE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Labine “the husband” and Ms Labine “the wife” are the parents of [X] born [in] 2002 and [Y] born [in] 2004.
The parties married [in] 2001[1] and separated on 21 April 2012. They are currently in dispute about final arrangements for the division of their matrimonial property and, more importantly, in the context of the current proceedings, interim arrangements for the care of [X] and [Y].
[1] The husband asserts the date was in 2000; the wife that it was in 2001. The dispute is immaterial for the purposes of the present dispute.
The husband wishes orders to be made, on a final basis, which would see the children living in what is commonly called a shared care arrangement, living with each of their parents for equal periods of time.
In practice, he proposes that the children live week about, with their parents, during both school terms and holidays, with arrangements being made to accommodate special occasions, which are essentially to be shared between the parties.
He is not pursuing such an arrangement in the interim. Rather, he proposes that the children spend alternate weekends, during term time, with him, from after school on Friday until the commencement of school the following Monday and in the other weekend of each fortnight from after school Tuesday until the recommencement of school the following Wednesday.
In terms of holidays, he wishes the children to spend half of each school holiday period with him. From his perspective, it is particularly pressing that the court makes arrangements for the recently commenced 2012/2013 end of year school holiday. He is anxious to spend meaningful time with the children during this holiday. Necessarily, he wants to spend an extended period of time with the children in this holiday period.
He also wishes orders to be made which would see him spending time with the children over the Christmas period and, in this regard, proposes that the children spend from 10:00am on Christmas Eve until 11:00am on Christmas Day with him.
At this juncture, it is common ground between the parties that their parental relationship is not currently an easy one. In this context, the husband seeks injunctions which would restrain the wife from denigrating him to the children or discussing these legal proceedings with them.
Allegations to do with the excessive consumption of alcohol also loom large in this case, with each parent asserting that the other has issues to do with alcohol. In this context, the husband seeks orders that would restrain the wife from being under the influence of alcohol during periods the children are in her care. The benchmark proposed for this restraint being the legally admissible alcohol content for driving.
Necessarily, it is the underpinning of the husband’s case that the court should make orders conferring equal shared parental responsibility for the children on both him and the wife. Thereafter, he would want the court to follow the legally mandated pathway and consider the children concerned spending either equal periods of time or substantial and significant time with him.
It is common ground between the parties that issues have arisen regarding the views of the children concerned, particularly the extent of time they wish to spend with their father. It is the wife’s position that the children are apprehensive about their father, as a consequence of the manner in which he has behaved before them in the past, particularly around the period the parties separated. She asserts that both children, but particularly [X], do not wish to spend overnight time with their father.
In this context, Mr Labine recognises that a family assessment report, which in part will canvas the views of the children concerned, is likely to be of assistance, both to the parties themselves and, if necessary, the court, to determine appropriate arrangements for [X] and [Y]. Accordingly, he proposes that Ms N be commissioned to compile a family assessment report.
The wife’s responding application is silent regarding the application of the presumption of equal shared parental responsibility to the circumstances of this case. By necessary implication, she opposes the application of the presumption. It is her case that the husband was violent towards her during the parties' marriage and the children concerned were exposed to this violence, with adverse consequences so far as the viability of their relationship with their father is concerned.
At present, she proposes that the children should only spend day time periods with their father, both during school terms and holidays, but otherwise live with her. During school terms, on a fortnightly basis, she proposes that the children spend from 3:30pm until 8:00pm on alternate Fridays and in the other weekend of the fortnight from 10:00am until 5:00pm on both Saturday and Sunday.
So far as the forthcoming holiday is concerned, she proposes daily blocks of time between 10:00am and 5:00pm from 17 to 21 December 2012 and from 3 January until 13 January 2013. In respect of the actual festive days of Christmas are concerned, she proposes the father spend time with the children from 3:30pm until 8:30pm on Christmas Day and from 10:00am until 5:00pm on Boxing Day.
Like Mr Labine in his case, the wife also seeks a number of injunctions against the husband. These centre on restraining him from consuming alcohol; denigrating her or members of her family to the children; and discussing the proceedings with the children. She also wishes an order to be made, which would require the husband to attend at an anger management course conducted by Relationships Australia.
The application of the injunctions sought by the wife stem from what she says has occurred in the period following the parties’ separation. It is the wife’s position that she has been a reasonable parent in this period and in particular has demonstrated a facility to support the children’s relationship with their father. In this context, she points to the fact that, following separation, the husband spent regular overnight periods with the children, at her instigation.
It is now her case that the husband has, on at least one occasion, drunk alcohol to excess and has denigrated her family to the children. She has deposed that [X], in particular, was discomforted by this behaviour and this has caused her ([X]) to be highly resistant to spending overnight time with her father.
From Mr Labine’s perspective, the wife’s proposals for him to spend time with the children are woefully inadequate. It is his case that he was significantly involved with parenting the children, prior to the parties’ separation. As such, he fears that his relationship with the children has been under significant levels of pressure, in the period since separation, and therefore he needs to spend reasonably lengthy periods of time with the children, in a variety of contexts, to sustain it from now on. As is frequently the case, in matters such as this one, the area of conflict between the parties concerns the appropriateness of overnight time for the children.
The parties are also in vehement dispute about issues to do with the division of their property. I was informed by counsel for the wife that the pool of assets to be divided is modest and there are currently significant pressures, on the parties, regarding debts. No doubt the controversy surrounding financial issues has intensified the parenting disputes between the parties.
The husband began these proceedings on 5 November 2012. Each party has filed a significant amount of affidavit material in the period since. The interim proceedings were vigorously contested, with the wife retaining senior counsel to represent her.
These proceedings have the potential to intensify the conflict between the parties and consume significant levels of their apparently scarce funds. Importantly, the proceedings may intensify any conflicts in loyalty, which [X] and [Y] hold in respect of their parents and intensify the level of emotional pressure on them.
Necessarily, intensely adversarial proceedings, such as these, will not assist the parties themselves to have a cooperative and child-focussed parenting relationship.[2] Whatever is the outcome of these proceedings, it is likely that the parties will remain in a parenting relationship, with one another, for many years to come.
[2] See Family Law Act 1975 at section 69ZN(6)
Accordingly, the viability of their on-going parenting relationship is likely to be a matter of significant importance to each of them, for a lengthy period of time into the future, perhaps more so far as the emotional well being of their children is concerned.
I am concerned that, in determining these significant interim issues between the parties, I may unwittingly do damage to the parties’ already compromised parenting relationship by creating a perception that one parent has won and the other parent has lost the interim competition between them. That is not my intention.
[X] and [Y] are not to be awarded as prizes to the parent whom I perceive to have behaved better, in what was and remains a difficult separation. Rather, I must remain focussed on the outcome which I consider will serve the best interests of the children concerned, at this difficult and early stage, where the evidence available to me is necessarily limited.
The nature of an interim hearing
Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
In cases involving arrangements for children, the most significant piece of evidence, which is not usually to hand at the interim stage, is a detailed and independent assessment of the needs of the children concerned and the nature of their relationship with each of their parents. At the final hearing stage, such family reports play a crucial role in the determination of cases.
At this stage, I do not have such a family report. Arrangements were made for the parties and [X] and [Y] to attend on Ms N, a psychologist, for such a report to be prepared, in October of this year. However, as a result of the wife changing her solicitors, she was advised to cancel the necessary interview times. In my view, this was highly regrettable and perhaps has added to the intensity of the dispute between the parties. Certainly, I do not think it can be described as a child focussed response.
However, notwithstanding the limited and provisional nature of the evidence available to the court, at this interim stage, a decision must be made between the competing claims of the parties concerned. In an ordered society, governed by the rule of law, there must be a mechanism for resolving disputes between citizens, including between those citizens who are parents and fall into disputation about arrangements for their children.
If there was not such a system, chaos would prevail and the strong would take advantage of the weak. In seeking an adjudication from the court, the parties concerned are bound by its decision. In resolving any parenting dispute, the court is not primarily concerned with the rights of the actual disputants. It must regard the interests of the persons most fundamentally affected by its decision – the children concerned – as the paramount or most important consideration.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses, after they have subject to scrutiny through a process of cross examination.
The essential difference between an interim and final decision is that interim hearings do not determine long term arrangements for the care of the children concerned, whereas final hearings do. Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final hearing stage.
The legal principles applicable
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act [see section 60CC].
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed:
“in applying the primary considerations… to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence.”
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served, by any order which the court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[3], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[3] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The husband approaches this case on the basis that the best interests of the children concerned dictate that they should benefit from having a meaningful level of relationship with him, as well as with their mother. In this context, he contends that the presumption of equal shared parental responsibility has not been rebutted.
On the other hand, the wife’s position is that at this interim stage, it is not appropriate for the presumption to be applied because there are reasonable grounds for the court to believe that Mr Labine has engaged in family violence.
In the alternative, the wife contends that proper consideration of the applicable section 60CC factors dictates that the children’s best interests, at this delicate stage, the court taking a cautious and incremental approach, which stops short of overnight time.
In determining these matters, it is necessary to set out the parties respective positions in respect of the matters which bring them to this point. Although there are many areas of factual dispute between them, there are also many important issues on which they agree.
The evidence
The parties agree that, during their marriage, both were employed on a full-time basis, working Monday to Friday. As such, in common with many families, the parties had to juggle the responsibilities of work and family.
In his affidavit material, the husband deposes as follows:
“Between 2009 and 2011 inclusive whilst I was [occupation omitted] I was primarily responsible for getting the children to and from school and looking after them after school until the wife returned home from work and during these years both the wife and I equally cared for the children in the evenings and on the weekends.
As I was self-employed this enabled me flexibility to ensure that I was available to care for the children on the days when they were sick or were not at school when the wife was at work. We were assisted in the care of the children when we were both at work by family and occasionally our friends, particularly my mother.”[4]
[4] See husband’s affidavit filed 5 November 2012 at paragraph 21-22
The wife does not dispute this assertion. More recently, the husband has ceased [occupation omitted] and has commenced employment with [omitted]. He has provided a letter from his employer indicating the willingness of that employer to provide him with flexible hours to enable him to engage with the children concerned. The wife is not in a position to contest the truth or otherwise of this assertion.
The husband’s position is that, throughout the parties’ relationship, he shared a close and affectionate relationship with [X] and [Y] and contributed equally, if not more, towards their care and supervision, in both a physical and emotional sense, than the wife did.
It is his case that it must be axiomatic that he has a close and loving relationship with the children concerned because it is indisputable that he has shared a household with them, for the entirety of their lives, until the parties separated. On any view, this is a significant period of time in the lives of both [X] and [Y]. Essential the husband contends that he was a central member of the children’s family and should continue to be such, notwithstanding the separation between the parties.
As such, given that it is accepted that he tended to the children’s needs in such a domestic setting, it must be the case that a significant parental connection exists between him and [X] and [Y], which any proper consideration of the children’s best interests demands should be sustained, regardless of the changed circumstances of the parties themselves, particularly that they are now living in separate households.
Whilst accepting that the husband was involved with the family and did provide for their needs from time to time, particularly in the mornings, it is the wife’s case that the husband became increasingly distant from the family, especially in the latter years of the marriage. Essentially, it is the wife’s case that the husband’s parenting became compromised by alcohol abuse; marijuana smoking; and computer involvement. She asserts that these activities precipitated significant anger problems in the husband, which resulted in she and the children having to tip toe around him. Accordingly, it is her case that the husband was not really a meaningful member of the family at all in the latter years of the marriage.
This is the central evidentiary issue in the case. To resolve it, it will be necessary for the parties’ credibility to be tested through a process of cross examination. As I have already indicated, such cross examination, if required, can only take place at the final hearing stage rather than at this early interim stage.
It is the wife’s position that this compromised parenting, as exhibited by Mr Labine, has significantly influenced the views of the children, particularly [X], against him. Although she concedes that the court is not able to get to the bottom of this issue, without more evidence, particularly in the form of a family report, at this stage, it is her contention that, nonetheless a consideration of the children’s best interests, dictate a cautious and incremental approach be taken.
The husband accepts that he has had prior issues to do with alcohol and marijuana consumption. It is also his position that the wife has a longstanding alcohol problem, which has caused her to behave violently and irrationally towards him, in the presence of the children. It is his case that the wife has physically assaulted and abused him, in the presence of the children.[5]
[5] See husband’s affidavit at paragraph 41
Importantly, in the context of these proceedings, the husband asserts that he has sought assistance in respect of his problems, whereas the wife has not. In this regard, he relies on a report from a psychologist, Ms C, whom he consulted on fifteen occasions between October 2010 and September 2012.
Ms C reports as follows:
“The client has made commendable progress and is using the anger management strategies and problem solving approach well as evidenced during the mediation process. In addition, the client has experienced feelings of anger during the separation process and has managed these feelings successfully using the strategies discussed. The client presents as stable and has managed his feelings of anger since recommencement of treatment. The client has support of his parents and their friends. The client also has supportive social networks. The client’s employer is supportive, and provisions have been made to work from home if caring for sick children.
Excessive alcohol seems to be a key factor in the arguments disclosed and as long as the client is not drinking excessively then accordingly, anger management should not be a problem. The client understands the importance of managing alcohol consumption as well as the consequences of not. The client has not drunk excessively since for the past 5.5 months. As long as the client continues using the strategies discussed in sessions and does not become complacent then he is capable of successfully managing his emotional states.”[6]
[6] See affidavit of Ms C filed 5 November 2012
The husband is prepared to abide by an injunction that he be totally abstinent from alcohol during all periods of time the children are in his care. He has also provided a drug screen test result, obtained in October of 2012, which indicates no illicit drugs were found in his metabolism on the date in question.
It is the husband’s case that, since the parties separated, he has engaged in a tortuous and exhaustive process of negotiation and mediation with the wife, in an attempt to assuage her fears about him, whilst she has done nothing to deflect his assertions about her violent and unpredictable behaviour. In this context, he fears that the wife is intent on disrupting his hitherto viable relationship with the children by dictating to him unreasonably restrictive conditions in respect of the time he may spend with them.
The parties are in general agreement as to what arrangements have been made for the husband to spend time with the children in the period since separation. They are in vehement dispute as to the underlying rationale of those arrangements and as to why they have ultimately come unstuck from around September of this year onwards. Again, the court is not in a position to make specific evidentiary findings about this central aspect of the case.
It is the husband’s position that he has consistently advocated for a shared care regime in respect of the children. It is also clear that the wife has been vehemently opposed to such an outcome. The underpinning of the husband’s case is that the wife is intent on controlling the amount of time he spends with the children in order to derail his application for shared care.
It is common ground between the parties that, in the period immediately following separation, the husband spent approximately one overnight period per week with the children. It is the wife’s case that she agreed to this proposal only under sufferance, as a result of pressure applied to her by the husband. It is also her case that she had significant reservations about this arrangement because she believed the children were not likely to be comfortable with it.
These concerns stem from the nature of the parties’ final separation. The wife says that the husband was verbally abusive towards her, in the presence of the children. As a consequence of exposure to this abuse, she asserts that the children were reticent about spending time with their father in the period following separation.
At this juncture, the husband has not specifically responded to this allegation. His application was apparently prepared with some haste and, on his application, was given an expedited hearing date of 10 December 2012.
Ms Labine responded to this application, with a lengthy affidavit, on 3 December 2012. Mr Labine filed his own lengthy answering affidavit, on 10 December 2012, which affidavit primarily dealt with controversial matters arising between the parties in respect of their property. As I say, in a comparatively brief period of time, the case has generated a significant volume of legal documentation.
In his second affidavit, the husband deposed that he had had a limited opportunity to “respond comprehensively” to the affidavit in question. He also indicated his belief that the court had ample affidavit material before it to determine the interim issues appropriately. For these reasons, it appears to be the case that the husband has not been able to respond specifically to a number of allegations made against him, regarding behaviour, on his part, said to be inappropriate.
In the early period, following the parties’ separation, the husband was living on a houseboat. He concedes this was inappropriate accommodation for the children. More recently, he has moved to rented accommodation in [E], which is near to where the parties formally lived together.
From July 2012 onwards, the husband asserts that he spent up to two days at a time, with the children, including periods of overnight time. On average, he was seeing the children for between 24 and 36 hours. It is his position that [Y], in particular, was upset at what he perceived to be unnecessarily short periods of time with his father.
The arrangement seems to have broken down around August/September of 2012. The wife says that this occurred because [X] was becoming increasingly anxious about the arrangement. Her anxiety being precipitated by her past experience of the husband’s violent behaviour.
The wife asserts that [X] has been receiving support, from the counsellor at her school, about these alleged anxieties. The mother reports that the counsellor has told her [X] is stressed because she wants to make everyone happy and feels her father pressures her in respect of extending the time she spends with him.
In this context, Ms Labine deposes that she has arranged to take [X] to a psychologist, in [E], to provide [X] with further support. I have not been provided with any evidence from the psychologist concerned. It also appears to be the position that Mr Labine was not directly consulted about the issue.
The wife contends that other significant incidents, which have emotionally reverberated for [X], occurred around the period of the child spending overnight time with her father. The father alludes to one such incident, but is silent in respect of others. Once again, in the context of this interim hearing, it is difficult, if not impossible, for me to resolve this evidentiary issue between the parties. I note in passing, however, that Ms Labine’s only knowledge of the matters concerned comes second hand from reports made to her by [X].
Mr Labine deposes that he collected the children, after basketball, on Saturday 15 September 2012, with the understanding that the two children would spend that night in his care. Later that evening, [X] requested to telephone her mother, a request which the husband facilitated.
After [X]’s conversation with her mother had terminated, she indicated to her father that her mother wished to speak to him. During this subsequent conversation, the wife told the husband that [X] did not want to stay the night. When Mr Labine asked her why, he deposes that she told him to “ask her himself”.
Mr Labine says he then asked [X] what was concerning her, to which the child responded by saying “you said that your family is better than mum’s family”. Mr Labine concedes that [X] was teary at this stage and he elected to take her home, as requested. He denies making the comment in question to [X] about the supposed superiority of his family.
The husband’s position is that [Y], having witnessed his sister’s distress, elected to accompany her home. Since this incident, neither child has spent any overnight time with their father. Rather, Mr Labine has been spending about five hours, during the day, on weekends, with the children. This state of affairs has precipitated the current application. It is his view that the time is manifestly inadequate.
In her answering affidavit material, the wife has bluntly denied the truth of the husband’s assertions in respect of this incident but has provided no details of it herself. In any event, as previously indicated, she can only rely on what [X] has told her about it. At first blush, it does not appear to be the most wounding of comments – your family is better than mine – if indeed the comment was made. However, I concede that I am unaware of the context of the comments. I am also well aware for the potential for comment been an adult and child to be misconstrued in the manner of their reporting.
The wife asserts that she is able to demonstrate that the husband has been denigrating her and her family to [X], as a result of what the child has said to her. That your family is better than Mum’s family being only the most recent example of this. By way of example, [X] has apparently inquired of her mother as to whether she was adopted or not. The child has also said words to her to the effect of “but you don’t put us first, you put [first names of family members omitted] first”. At this stage, I confess, that I do not fully understand the implications of these various comments, from the wife’s perspective.
The incident, of which the wife complains, to which the husband has not as yet formally responded, concerns something said to have happened on 26 August 2012, when the children had spent some time with their father. [X] is alleged to have said words to the effect of “Dad got drunk, at the table all the men were talking about getting women into bed and Dad didn’t even care that I was there.”
The wife alleges that the husband does not cope well with stress and, as such, “is likely to engage in violent outbursts and abusive language as he often did so during the marriage.” I am concerned at the somewhat amorphous nature of this allegation. It is not said explicitly by the wife that the husband having to care for the children per se will precipitate such a stressful incident for the husband.
The wife has other somewhat diffuse criticisms of the husband’s parenting. By way of example, she criticises him for providing [Y] with a school lunch of party pies and sausage rolls, which he did not like.
The wife describes any suggestion that she has been violent towards the husband as a “bare faced lie”. Apart from the wife’s assertion that the husband was violent towards her, there is little, if any, independent evidence to support such allegations. The same applies to the husband’s allegations that the wife was violent towards him.
I accept however that the incident, which brought about the parties’ final separation, was an unpleasant and difficult one. It seems that the police were called to the incident. This involvement precipitated [R] CIB writing to the wife to provide her with information regarding the possible implications for children of being exposed to such violence.
The wife has provided me with a copy of this letter.[7] The letter appears to be a pro forma one. As such, it is not helpful to me to ascertain what happened on the date in question or perhaps, more importantly, attempt to categorise the nature of any violence which occurred.
[7] See annexure CAL4 to the wife’s affidavit filed 3 December 2012
Since August of 2012, the wife asserts that neither child has wanted to spend any overnight time with the husband. As such, she deposes that she has been acting in accordance with the children’s views. Accordingly, she contends that she what she currently proposes for the children to spend time with their father is entirely reasonable and responsible.
It is against this difficult and conflicted background that the court must make a determination as to the ongoing interim parenting arrangements for the children concerned. There are many issues in dispute between the parties, namely:
· What was the nature of the relationship between them?
ØWas it characterised by mutual alcohol consumption and irresponsible and violent behaviour by both parties – as the husband contends; or
ØWere the wife and children regularly subject to the husband’s alcohol initiated anger outbursts – as the wife contends.
·What has been happening, so far as the children are concerned, since the parties separated, but particularly since August/September of this year?
ØIn particular, has it been shown that the experiment of overnight time has failed because the children are uncomfortable with it as a consequence of their historic and current experience of their father – as the wife contends?
ØOr, on the other hand, are the children reacting to the conflict between their parents and is [X], in particular, aligning herself with her mother – as the husband, in effect, contends?
·In this difficult and conflicted context, what are the views of the children concerned?
ØThe husband contends that [Y] in particular, wants to spend more rather than less time with him;
ØOn the other hand, the wife contends that the children, but particularly [X], do not want to spend time, especially overnight time, with their father.
Although these are significant evidentiary differences between the parties, it is also apparent that they agree on some matters. Firstly, and most importantly, it is clear that the parties and the children concerned lived as a family until very recently. In this context, it is agreed that the husband provided a significant level of care to the children, as both parties were in full time employment.
Section 60CC factors
a) Primary considerations
The husband places significant emphasis, in his case, on the benefits [X] and [Y] are likely to derive from having a meaningful relationship with him. The essential underpinning of his case is that the children will not have a meaningful level of relationship, with him, if their time with their father is artificially confined. Essentially, Mr Labine argues that this will be not meaningful time.
The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings.
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
It is Mr Labine’s position that the most logical and practical way, in which [X] and [Y] may have the most meaningful level of relationship, with him is if they spend block periods of time, during school holidays, as well as reasonably lengthy periods of time during the school term, with him. His case being predicated on his assertion that, until the parties separated, he was a daily presence in the children’s lives.
In theoretical terms, I accept that Mr Labine’s relationship with the children is likely to be imbued with more meaning if he spends more time with them. Confining to daylight hours only may have the potential to suggest to the children that he is a part-time parent or one who is not greatly interested in them.
Clearly, from the perspective of the legislation concerned, Mr Labine spending reasonably lengthy periods of time with the children, in a variety of settings and contexts, is the optimal one. The central question to the court, is whether, at this stage, having considered all the applicable section 60CC factors, such an optimal outcome is both calculated to be in the best interests of the children concerned and sustainable, in a practical sense.
The wife’s position is that, on the basis currently available to the court, the outcome proposed by the husband is clearly not likely to be in the best interests of the children concerned because they have been exposed to family violence, in the past and accordingly the court’s preeminent responsibility is to provide protection for them.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Repeated derogatory taunts.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. In this case, it is the wife’s case that both [X] & [Y] were exposed to family violence, both at the time of the parties’ final separation and prior to it. It is her case that [X] in particular carries some psychological injury as a result of this exposure.
In addition, the amending legislation has provided a new definition of “abuse” for the purposes of the Act. The definition now includes causing a child to suffer “serious psychological harm, including…when that harm is caused by the child being subjected to, or exposed to, family violence..”
As I have already indicated, pursuant to the provisions of section 60CC(2)(a), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act regarding family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[8]
[8] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
This does not mean that allegations of family violence are not to be closely scrutinised by the court or uncritically accepted. Nor does it mean that the court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns pertaining to family violence.
The rational for the amendments is to safeguard children from coming to harm as a result of exposure to family violence. Section 60CC(2)(A) makes this the court’s priority. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”
The father refutes any suggestion that he was violent towards the wife. To the contrary, it is his contention that he was the victim of the wife’s violent behaviour towards him. As I am at pains to point out to the parties, at this interim stage, I am not in a position to resolve this central evidentiary dispute.
However, as matters currently stand, there is no independent corroboration available to support the wife’s claims of having suffered family violence at the husband’s hands, nor vice versa. For reasons already provided, the letter from the police, provided by Ms Labine, is not definitive either way.
However, it is rarely the case that one party can irrefutably prove his or her allegations of suffering violence at the interim stage. This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[9]
[9] See Amador & Amador (2009) 43 Fam LR 268
Very often family violence arises within the private confines of a family home, in the absence of independent witnesses. Its victims may suffer a range of emotional responses, such as embarrassment, shame and indeed fear, which render the reporting of the violence to appropriate authorities difficult and accordingly its independent verification problematic.
In addition, the victims of family violence are intimately connected with the perpetrator of the violence concerned. This situation, of itself, creates emotional conflict and doubt. It is however now generally recognised that family violence is prevalent in all social settings and walks of life and represents a corrosive threat to the emotional well being of children.
In addition, family violence is not homogenous in its qualities and implications for children. It can range in character from impulsive behaviour, which arises as a result of a stressful situation, such as a relationship breakdown. This is called situational violence. Individuals do not always behave well, when unhappy or subject to emotional pressures.
In these circumstances, individuals can lose their composure momentarily and then instantly regret their actions. In addition, there may be elements of provocation, to which such an individual responds in these difficult circumstances.
At the other end of the spectrum, family violence can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Such conduct falls more easily into the descriptor of coercive and controlling behaviour, which is the main focus of the provisions contained in section 4AB.
This latter behaviour is the more damaging so far as children are concerned.[10] Not all incidents of family violence will be necessarily damaging for a child. The court must examine the context in which concerns about violence have arisen. Such a context may also be coloured by considerations relating to the post separation politics of the parties concerned.
[10] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
In the period following separation, notwithstanding her position in the current proceedings, the wife was open to the children spending time with their father, including in an overnight setting. Accordingly, it was not her position that such an outcome would expose the children to an unacceptable risk of being re-exposed to family violence emanating from their father.
Although I am not in a position to characterise any incidents of family violence, which have occurred to date between the parties, the most recent episode of such violence, described by the wife, occurred in the context of the parties’ separation. It is clear, from the evidence available to me, that this was a difficult and emotional fraught period of time, for both parties.
As such, it seems unlikely that either party will re-engage in a violent altercation with the other, if steps are taken to avoid them coming into direct contact with one another and there is a reasonably clear protocol for the children to be exchanged between them. It is also likely to be helpful for injunctive orders to be made to prevent either party making a potentially provocative statement, particularly if such a statement is capable of misconstrual by either of the children concerned.
Both parties assert that the other has a historic difficulty with alcohol consumption. Alcohol, by its nature, is a disinhibiting substance. As such, it would appear to me to be axiomatic that, if the parties are each restricted in their consumption of alcohol, in all of their future interactions with the children, the possibility of a recurrence of family violence will be much reduced.
In this context, the evidence available to me, in the form of Ms C’s report, does indicate that Mr Labine has taken some steps to redress his alcohol and anger problems. Although this evidence has not as yet been subject to scrutiny, it is, in my view, positive in nature and helpful to the husband’s position.
In all these circumstances, an injunction restraining the husband from consuming alcohol, during the periods the children are in his care, seems to me to be an appropriate and proximate response to the degree of risk arising from the children spending time with their father, particularly in terms of him suffering some form of anger outburst. In addition, it does not seem to me that overnight time, between the children and their father, should be ruled out solely on the basis of any need to protect the children from being either subjected to or exposed to family violence in the future.
In this context, it is now appropriate to turn to the additional considerations. As I understand it, it is the wife’s position that her concerns regarding family violence, when coupled with a proper consideration of other of the relevant additional considerations arising under section 60CC(3), particularly the views of the children, rule out the husband spending overnight time with [X] and [Y] at this point.
b) Additional considerations
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[11]
[11] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
In this case, there has not as yet been any formal or objective examination of the views of [X] and [Y] in respect of spending time with their father, particularly in an overnight context. The only evidence regarding the children’s views comes from the parties themselves. These views are not congruent. For obvious reasons, neither the husband nor the wife is currently in a position to provide either a dispassionate or objective perspective on the children’s views.
The wife asserts that [X] has elected to withdraw from overnight time with her father. [X] is just over ten years of age. She cannot be regarded as a child of maturity. On this basis alone, I believe I must approach her views, as described by the wife, with some caution.
In addition, the alleged complaint [X] has levelled at her father, regarding the disparaging of her mother’s family, although, if true, is conduct amenable to criticism, in my view, is not the most serious example of this type of behaviour. In addition, there remains a distinct possibility that, whatever Mr Labine said, it has been subject to misconstrual, as it has travelled from him to the wife, via [X].
It is Mr Labine’s position that [Y] has told him that he wants to spend more time with his father. These comments occurred in the context of the earlier period of overnight time between the father and their children. The wife concedes that [Y] has supported the stance of his older sister in respect of overnight time. In my view, this is significant. His individual preferences may be different to those of his sister.
The children’s views are important, but they are not the sole determinative factor in the case. The children concerned are young. It is likely that there are many factors impacting on what they are said to have told both their father and their mother. Given their tender years, the children are not likely to appreciate the significance of interacting with their father, in a loving manner, will have for their long term development.
I accept that the separation between the parties was a difficult and traumatic one for them. In those circumstances, both the husband and the wife are likely to be passing through a process of emotional adjustment for some time to come. So too, are [X] and [Y].
There is evidence, in the form of what [X] is reported to have said to the school counsellor, to indicate that she feels that her loyalties are under some pressure because of the separation between her parents.
From Mr Labine’s perspective, he fears that there is an appreciable risk of the children becoming emotionally aligned with their mother, against him, in the difficult post-separation circumstances which have arisen. I do not rule out this as a potential factor in this case. In this sense, there is a risk in the court placing too much emphasis on [X]’s apparent view, as reported by the wife.
In my judgment, there may be some benefits in the court attempting to normalise the children’s relationship with their father by extending the time the children spend with him. This is on the basis that it seems clear the children have had a significant level of relationship with their father in the past.
After all he occupied the same premises with them, until the parties’ separation. The reality of the vast majority of the children’s lives to date is that they have shared a household with their father. The wife concedes that Mr Labine, in the past, regularly provided for the children’s day to day needs.
The essence of the wife’s case is that, certainly during the latter years of the parties’ marriage, the husband was a compromised parent, as a result of drug and alcohol abuse. On the other hand, it is Mr Labine’s position that he was actively involved in every aspect of the children’s lives. Again, I am not in a position to resolve this issue at this stage.
However, it cannot be said that, since the parties separated, Mr Labine has been disinterested in the children. To the contrary, he has actively sought to be involved with [X] and [Y], particularly in regards to spending extended periods of time with them. I have been provided with voluminous correspondence, which has passed between the parties, regarding this issue.
In cases involving children younger than [X] and [Y], overnight time with a parent, frequently a father, is a topic of intense controversy between separated parents. I can understand why this is so. Young children, up to the age of three or four, may exhibit symptoms of insecurity at night time. They may be more emotionally aroused at night and, given deficits in their verbal and cognitive skills, will be unable to express their concerns to their carers. In addition, issues to do with primary attachment are more significant with such infants.
These considerations are not so germane to [X] and [Y], who are articulate children. In the past, it seems inconceivable that they have not spent overnight periods away from their parents. At ten and eight years of age, I would expect them to have sufficient emotional resilience to be able to spend overnight periods away from either of their parents.
The parties live in reasonable proximity to one another in [E]. I accept the documentary evidence provided by Mr Labine, which indicates that he will be able to take off time, from his employment, to engage with the children. As such, there are no logistical impediments to him spending blocks of time with the children.
In the past, the wife has conceded that the husband has sufficient practical parenting skills to provide for the children’s physical needs. She criticises him for being emotionally absent from the children and insensitive to how they currently perceive him, as a result of exposure to his past behaviour.
The husband too has his criticisms of Ms Labine in respect of her attitude to the responsibilities of parenting, one of which is to support and encourage a proper level of relationship between any children concerned and the other parent, following marital breakdowns. It is his perception that the wife has unreasonably dictated to him the terms on which he can interact with the children and the only reason for this conduct, on her part, is to satisfy her own emotional needs.
In all these circumstances, I accept that the topography of the parties’ post-separation parenting relationship can only be described as “bumpy”. In these circumstances, although I have come to the conclusion that there should be some overnight time, between the husband and the children, how quickly such a regime is inaugurated and how extended it is must be approached sensitively, otherwise the regime may miscarry.
On the other hand, I also appreciate that, from Mr Labine’s perspective, time is of the essence and he fears the children may be drifting away from him emotionally. The wife’s feeling too must be respected. She is resistant to the children spending extended periods of time with their father. There must be some balance between these competing factors.
However, at this stage, given my view that [X] and [Y] are likely to benefit from having a meaningful level of relationship with their father, it is important that Mr Labine’s time with the children be extended to incorporate some overnight time and some block periods in holidays. The approach will be incremental and will not be as extensive as
Mr Labine would want nor will it be as circumscribed as the regime advocated by Ms Labine, particularly in regards to the vexed issue of overnight time.
Any regime of contact between a parent and children, constructed following the intense but somewhat artificial process of an interim hearing, must be somewhat experimental in nature. I do not have a crystal ball and cannot know what will happen. I must be careful not to construct a regime which is unduly ambitious. On the other hand, I must not be unnecessarily cautious and create a regime which does not fulfil my prime objective of normalising the relationship between parent and children. The orders which I will make must be of sufficient depth to maintain an adequate quotient of meaning in that relationship.
At this difficult stage of emotional adjustment for the parties concerned, I have come to the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage. At this juncture, there are unlikely to be any major long term decisions arising in respect of either child. The parties will remain responsible for making any day to day decisions arising in the periods the children are in their respective care.
Accordingly, I am not legislatively mandated to consider the children spending either equal periods of time or substantial and significant periods with each of their parents. Rather, by reference to the various section 60CC factors. I must determine the interim arrangement, which I consider will best serve the interests of [X] and [Y].
Given the complexities arising in this matter, in my view, there is a need for a family assessment report to be compiled sooner rather than later. It is regrettable that the earlier steps to obtain such a report, from Ms N were derailed.
As yet, I have not been told how quickly either Ms N or some other expert can be engaged. I anticipate that such a report can be obtained by the end of April 2013, a period approximately 18 weeks away. I propose constructing a regime for the husband to spend time with the children, which will encompass this period. This includes the period of Easter and the end of first term school holiday, as well as, obviously, the imminent period of Christmas and the long end of year holiday.
What I have in mind, is maintaining the current regime of daily time, in the period immediately prior to Christmas. I then propose to inaugurate the first overnight period between the afternoon of Christmas Day and the afternoon of Boxing Day.
Christmas is a significant period of time for all Australians, particularly the parents of children. In my view, it is important that the husband see the children over Christmas; share presents with them; and that all three have a celebratory meal together. I hope that Christmas will provide a relaxed opportunity for [X], in particular, to spend a longer period with her father than has happened over the last two or three months.
Thereafter, I propose reverting to a further day time period, in the lead up to the New Year, before providing one overnight period in early January; a longer overnight period in the second week of January; and a further four night period in the last week of the holidays.
In my view, this is a far more modest (and I hope nuanced) approach than that advocated by Mr Labine. It is however more ambitious than that advocated by Ms Labine. It includes overnight time. For reasons already provided, I am not persuaded that the children concerned, given their ages, are likely to have any particular sensitivity to overnight, as opposed to day time periods.
The aim of allowing the children to spend overnight periods of time, with their father, is to add a dimension of normality to the parental relationship between the three individuals concerned. Mr Labine will have to attend to the children’s bed times. He will have to prepare breakfast for the children concerned. His involvement in such mundane activities, is calculated to add and maintain meaning in his relationship with the children.
In addition, longer periods of time will allow both him and the children sufficient time to be able to relax in one another’s company. This time, sometimes described as “hanging around time”, is also important to the maintenance of parental relationships. It is hoped that it will add intimacy to that relationship.
It would seem to me to be largely axiomatic that for children and parents to have an ease and natural warmth together, they need to spend sufficient quantities of time together. Both quantity and quality of time spent are instrumental in maintaining and developing meaningful parental relationships.
From the start of the school year in 2013, in my view, it will be appropriate for Mr Labine to begin spending overnight time with the children, at both weekends and mid-week. Again, the intent of these orders will be to ensure that the children have a sense that their father is meaningfully involved in the day to day aspects of their lives and is not confined to a subsidiary role, as a consequence of the parties’ separation.
Prior to the children’s aspect of the case returning to court, with the completion of the family assessment, it will be appropriate for the children to spend time with their father for half of the Easter period and one half of the end of the term 1 year holiday. These holiday arrangements can be described as conventional ones, so far as many separated children are concerned.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 21 December 2012
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