Larkins and Larkins

[2013] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARKINS & LARKINS [2013] FCCA 2072

Catchwords:
FAMILY LAW – Children – consideration of equal shared care.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
MRR v GR [2010] HCA 4
Mazorski v Albright (2008) 37 Fam LR 518
T & N (2004) 31 Fam LR 281

Applicant: MS LARKINS

Respondent: MR LARKINS

File Number: MLC 10556 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 26, 27 and 28 August 2013

Date of Last Submission: 28 August 2013

Delivered at: Brisbane

Delivered on: 4 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Matta

Solicitors for the Applicant: Barbayannis Lawyers

Counsel for the Respondent: Mr Stavris

Solicitors for the Respondent: N/A

ORDERS

1. That the parties have Equal Shared Parental Responsibility for:

   (a)W born (omitted), 1996;

   (b)X born (omitted) 1999;

   (c)Y born (omitted) 1999; and

   (d)Z born (omitted) 2007.

2. That the children X, Y and Z live with the mother when they are not otherwise living with the father in accordance with these orders.

3. That until the conclusion of the school term 2 in 2014 the children X, Y and Z live with the father:

   (a)From after school Wednesday to before school Thursday each week; and

   (b)From after school Friday to before school Monday each alternate week.

4. That from the commencement of the school term 3 in 2014 the children X, Y and Z live with the father:

   (a)each alternate week from afterschool Wednesday to before school Monday;  and

   (b)from afterschool Wednesday to before school Thursday in the alternate week.

5. That notwithstanding orders (2), (3) and (4) the children X, Y and Z spend time with each parent for half of the school holidays as agreed between the parents and failing agreement:

   (a)With the mother for the first half in odd numbered years and the second half in even numbered years;

   (b)With the father for the second half in odd numbered years and the first half in even numbered years.

6. That the children X, Y and Z spend time with the father from 10.30am Christmas Day to 10.30am Boxing Day 2013 and each alternate year thereafter and from 4pm Christmas Eve to 10.30am Christmas Day 2014 and each alternate year thereafter.

7. That the children X, Y and Z spend time with the mother from 4pm Christmas Eve to 10.30am Christmas Day 2013 and each alternate year thereafter and from 10.30am Christmas Day to 10.30am Boxing Day 2014 and each alternate year thereafter.

8. That the children X, Y and Z spend time with the father from 12 midnight on (religion omitted) Saturday until 10.30am (religion omitted) Sunday and then from 4pm until 7pm on (religion omitted) Sunday 2014 and each alternate year thereafter and from 10.30am until 4pm on (religion omitted) Sunday 2015 and each alternate year thereafter.

9. That the children X, Y and Z spend time with the mother from 10.30am until 4pm on (religion omitted) Sunday 2014 and each alternate year thereafter and from 12 midnight on (religion omitted) Saturday until 10.30am (religion omitted) Sunday and then from 4pm until 7pm on (religion omitted) Sunday 2015 and each alternate year thereafter.

10. In the event the children X, Y and Z are living with the father in accordance with these orders on Mother’s Day the children spend time with the mother from 6pm on the Saturday immediately preceding Mother’s Day until 3pm on Mother’s Day.

11. In the event the children X, Y and Z are living with the mother in accordance with these orders on Father’s Day the children spend time with the father from 6pm on the Saturday immediately preceding Father’s Day until 3pm on Father’s Day.

12. In the event the children X, Y and Z are living with a parent in accordance with these orders on the other parent’s birthday, the children spend time with that other parent for 2 hours if a school day or 5 hours on a non-school day at times agreed between the parties.

13. In the event the children X, Y and Z are living with a parent in accordance with these orders on a child’s birthday the children spend time with the other parent for 2 hours if a school day or 5 hours on a non-school day at times agreed between the parties.

14. That the parents be at liberty to communicate with the children by telephone at any reasonable hour.

15. That each party is restrained from denigrating the other or members of the other’s family to or in the presence or hearing of the children or any of them and must use their best endeavours to ensure no other person does so.

16. That in the event any of the children falling ill to the extent of having to be confined to bed or having an accident or requiring hospitalisation, the parent in whose care the children are in at the time shall immediately inform the other parent and afford the other parent the opportunity of visiting the child at all reasonable times.

17. That each parent be entitled to attend and participate in any school, extracurricular, sporting and/or cultural activity engaged in by the children X, Y and Z or any of them regardless of with whom the children are living on the day of the activity.

18. That each parent be entitled to obtain school reports and photographs and any notices from the schools attended by the children as well as from any sporting clubs or extracurricular activities attended by the children.

IT IS NOTED that publication of this judgment under the pseudonym is Larkins & Larkins approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10556 of 2012

MS LARKINS

Applicant

And

MR LARKINS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of V, W, X, Y and Z are unable to reach an agreement in relation to the future parenting arrangements for the three youngest children.  V is now an adult and lives primarily with the mother and spends time regularly with the father.  W has been completing her final year of high school and the parents quite appropriately are respecting her wishes in relation to her living arrangements.  I do not therefore propose to make any orders providing for where W should live or with whom she should spend time.  I will however make an order as to parental responsibility for her in case any issue arises before her 18^th birthday in April next year. 

2. The father would like the three younger children to live with the parents in an equal shared care arrangement, although he is open to how that arrangement should be formed and is also open to its implementation being structured in a way that would see an incremental increase of time with him until the equal shared care arrangement is reached.  The mother on the other hand seeks orders for the children to primarily live with her and to spend time with the father on alternate weekends.  She also proposed that in addition to the alternate weekends X would spend overnights on Wednesdays each week with the father and Y would spend each Saturday with him.  A number of different scenarios were canvased during the hearing. 

Background

1. The parties married in 1993 after a four year relationship.  They did not live together before their marriage.  Although they separated in August 2011 they remained living under the one roof until April the following year.  V was born on (omitted) 1994.  W is 17 years of age having been born on (omitted) 1996.  Twins, Y and X are 14.  They were born on (omitted) 1999.  The youngest, Z was born on (omitted) 2007 and is about to turn 6.

2. The parties obtained a report from Psychologist, Ms B in March of 2012.  This report recommended that the father vacate the former matrimonial home, which he did on 6 April 2012.  On 20 November 2012 the mother filed her Initiating Application seeking both parenting and property orders.  The father filed his response on 1 February 2013.  Interim consent orders were made on 4 February 2013 providing for the children to live primarily with the mother and spend time with the father on alternate weekends Friday to Monday and for dinner on Wednesday evenings during school term.  Holidays were to be shared equally.

3. An updated family report was obtained on 12 August 2013.  The report writer recommended a move to an equal time arrangement.  The parties attended a round table conference a few days later but were unable to resolve their outstanding disputes.  The mother filed an amended application on 20 August 2013 and the father filed his amended response on 23 August 2013.  At the commencement of the hearing I ordered an updated oral report in light of assertions made by the mother that the children’s views were different to those expressed in the recent family report interviews because the younger children misunderstood the intended involvement of the older children in any parenting arrangement. 

4. The parties resolved their property adjustment by agreement on the first day of the hearing.

5. The father who is 43 years of age currently lives with his parents in (omitted).  He owns a block of land in Property M and plans to move into a home being built on it in the not too distant future.  He works as a (occupation omitted) in his family business.

6. The mother, who is 45, is employed as an (occupation omitted) at a (omitted) and will continue to live in the former matrimonial home in Property G following these proceedings. 

Material relied upon

1. In support of her application the mother relied on:

   a)her amended application filed 20 August 2013; and

   b)her trial affidavit also filed 20 August 2013. 

2. The father relied on:

   a)his amended response filed 23 August 2013;

   b)his trial affidavit filed 23 August 2013; and

   c)his earlier affidavit filed 21 February 2013.

3. Ms B’s reports came into evidence annexed to her affidavits filed 29 November 2012 and 21 August 2013.  I also took evidence by telephone from Ms B updating her report after reinterviewing the children on the second day of the trial. 

4. Both parties gave further evidence and were cross examined.

5. Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.

Legal principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome, the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2] 

   [1] S 60B

   [2] S 60CA

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [3] S 60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5]  This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[6]

   [4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [5] S 61DA

   [6] S61DA(2) & (4)

4. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[7]  If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[8]

Considering the Objects and Principles of Part VII and determining the best interests of the children – the s.60CC considerations

[7] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

[8] S65DAA(2)(c) & (d)

1. I am satisfied that the proposals of each of the parties will meet the objects and principles of the Act. I am required to determine the children’s best interests by considering a number of factors set out in s.60CC.

The primary considerations: s.60CC(2)

The benefit to the child of having a meaningful relationship with both of the child’s parents[9]

[9] S60CC(2)(a)

1. These children have close and loving relationships with both parents.  Although both parties worked during the relationship, I accept the mother’s evidence that she was more available for them and has been their primary carer.  The grandparents have also played a significant role in the care of the children.  Each party supported the children continuing to have meaningful relationships with the other parent.  It was the father’s view that this would be best achieved by moving, over time, to an equal shared care arrangement.  The mother on the other hand was of the view that it was not necessary for an equal time arrangement to be implemented to maintain the parent/child relationships.

2. Brown J in Mazorski v Albright[10] said:

   [26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive one.  Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.

   [10] (2008) 37 Fam LR 518 at 526 [26]

3. I respectfully agree.  The proposals put by each party will in my view ensure that the children maintain and develop their meaningful relationships with each parent.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence[11]

[11] S60CC(2)(b). S60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).

1. The mother raised in her evidence concern that the children have been exposed to denigration of her by the father.  She also gave evidence of an incident at Church a couple of weeks prior to the hearing where she alleged she was pushed by the father as well as denigrated in front of the children and other relatives.  This issue was not seriously canvassed at the trial and no submissions were made by either party that I should be concerned about these children being exposed to family violence.  I am satisfied that in either household these children will not be at risk of physical or psychological harm.

The additional considerations: s.60CC (3)

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[12]

[12] S60CC(3)(a)

1. The older children’s views have taken on significant importance during the course of this trial which is not surprising given their ages.  Their views however have shifted over time.  Although the interviews for the second report were conducted on 10 July and the report released on 12 August the mother told the court at the commencement of the hearing that their views were different to that expressed to the report writer.  I was persuaded to order an updated report which Ms B gave orally.  Her evidence clearly showed a significant shift in the children’s views.    

2. In the first report the report writer assessed each of the children to be healthy and confident.  They all spoke positively about each of their parents.  Even though V was almost 18 when the first family report was prepared, she took part in the interviews and expressed a wish to live with the mother and see her father regularly.  She was described as a healthy, confident and articulate young woman.  Her observation of her parents to the family report writer is quite telling:  “It is quite tense; Mum and Dad don’t argue and they don’t hate each other, but they can’t live with each other.  We’re all getting frustrated that nothing is happening.”

3. In the first report W spoke positively about both parents and said she would like to live with them in an equal time arrangement.  She was aware that this could be difficult as she had a friend that found the arrangement too hard.  If that turned out to be the case for her she would go back to live with her mother and spend time with her father.  It was clear she wanted to spend time with both of her parents.  At that stage she was finding the parents living under the same roof as too emotionally distressing.

4. The twins also wanted a shared care arrangement when they were interviewed for this first report.  X said that she would prefer to live in the family home with her mother but if her father lived within walking distance she would like to live week about with her parents.  Y wanted to spend the same amount of time with his parents as he would miss his father otherwise.

5. Given Z’s young age she was not interviewed to gauge her views.  The report writer observed the child to be of sound physical, intellectual and social development who interacted warmly and enthusiastically with her parents and siblings.

6. The second report was prepared some 16 months after the first report and 15 months after the father had vacated the former matrimonial home.  In this time the children had been living primarily with their mother and spending alternate weekends from Friday to Monday with their father at his parents’ home as well as from after school Wednesdays until 7.30pm.

7. In this report V told the report writer that the three younger children had settled into the arrangements.  She said she felt pressured to spend more time with her father and she thought W was also struggling with an expectation to spend more time with her father.  The father had indicated to the report writer that he did not want to pressure her about the living arrangements.  He recognised that she was an adult now.

8. W said she did not want to choose between her parents but if she was with her father she may want to go to her mother’s and she would like to have that choice.  The report writer had been told that W had been diagnosed with anorexia since her last report and that she suffered anxiety and panic attacks.

9. Both X and Y said they wanted an equal time arrangement.  Y did not want to express a view saying his mother gets upset because she doesn’t agree with him.  He said he can only talk with his father not his mother.  He presented as the most distressed of the children.  He wanted the court to know that “I need to have Dad more.  I can’t spend any more time away from him … we’re like Best Friends, it’s the closest friendship I’m going to have”. He went on to say that he feels ‘guilty’ when spending individual time with his father but the best times he has with his father are his one on one times.  He wanted to be able to say that he wanted to see his father and not feel guilty about it.  X also wanted to spend more time with her father: “so that it’s sort of even”.  She said she gets spoilt with her father.  She did not want to upset her mum but wanted to spend a week with each of her parents.

1. Z was not interviewed.

2. The children were again interviewed on 27 August some seven weeks after their interviews for the second report.  There had been a shift in the views of X and Y after the mother told them that the report writer recommended a week about arrangement for the three younger children.  Although the mother did not show the report to the children, according to V she was visibly upset.  She said the father didn’t say anything to them about the report.  W reacted badly to the news having a panic attack and was screaming.  Y who is particularly close to W tried to comfort her.  Later she sent the twins a text message saying: “I cannot deal with not seeing you for a whole week.  Even though I love him very much I feel terrible not being able to follow you to dad.”  Y became upset about the possible future arrangements and at his request the mother arranged for him to speak to a doctor.

3. V described the sibling relationship as very close.  She understood her mother to have the view that it was better for the children to live with her to provide consistency for the children.  She agreed with her mother’s view and believed W shared the same view.  She went on to say “I don’t want to say that [the mother] is a better parent.  Mum has done more on her own and Dad hasn’t been on his own yet, and both of them are good.”

4. W felt that Y would miss her the most if he did not see her for a week.  She said she did not want to push her siblings away from the father but she did not want it to be fifty-fifty.  She said the twins knew why she wouldn’t do fifty-fifty because of her studies.  When asked what she would like to tell the judge she said:  “Tell him I want them to not see me as a selfish person, but I can’t afford to be separated from them.”

5. Y appeared to take on a protective role in relation to W.  He said:

   “W was upset by me not being here.  She has got an eating disorder, and panic attacks, and she prefers me to be there.  I can’t leave W for a whole week.  I’m always there for her.  If I’m not there, I don’t know what would happen.  I’m pretty sure mum could handle it.  But I tell W everything, and she tells me everything.  W said she wouldn’t go to the whole week because she finds it too hard, and it’s easier to spend more time with mum.  W had a panic attack, and mum was trying to calm her down and I did too.  That’s the most important part of this because if I went to dad for a week, and with mum for a week, it would lose all of the last five months with W, because she hasn’t been vomiting.  It would be better for my wellbeing, and her wellbeing, to be with her.”

6. When gently challenged about his comments in the second report interviews about wanting to spend more time with his father and that he was his best friend he said:

   “If I can’t spend time with my sisters with him, it doesn’t matter.  If I went every Saturday with him, between 8 and 5, that would be good.  Now , this was my idea, but I elaborated it with mum.  I would rather spend one on one time than a whole week.”

7. He wanted to tell the court that he wanted to be with W.

8. X believed that if she spent a week with each parent she would not see her older sisters for a week.  She was open to spending one on one time with her father on Wednesdays.  X was concerned that W might get sick again if she did not see the younger children.

9. The views of X and Y must be given significant weight given their ages.  Ms B assessed the twins as having reasonable maturity and neither parent suggested otherwise.  Their views have no doubt been influenced by the close relationships they have with their siblings.  When I take into account the views expressed by each of the twins in the first and second reports I am satisfied these children want to spend more time with their father but they also do not want to lose their close knit sibling unit.  Subject to my concern as to Y and to a lesser extent X feeling responsible for W’s wellbeing, I am satisfied this is an important consideration which will weigh heavily in my determination.

10. Z’s views were not canvassed which was appropriate given her young age. 

The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)[13]

[13] S60CC(3)(b)

1. The report writer observed each parent to be warm and appropriate in their parenting and that the children had secure attachments with each of them.  The sibling relationships are of significant importance in this case.  This is a close family and all children have close relationships with each other.  The report writer in her oral report gave evidence of the need for the children’s development to proceed to further individuation from each other.  She was particularly concerned that Y feels responsible for W’s care.  She recommended family therapy to assist all of the children to alleviate any anxiety in this regard and to assist the family as a whole to transition to a different parenting arrangement.

2. The children are feeling the loss of their maternal grandmother who died earlier this year.  They enjoy a close relationship with their paternal grandparents which would continue under either party’s proposal.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

a)To participate in making decisions about major long-term issues in relation to the child; and

b)To spend time with the child; and

c)To communicate with the child[14]

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child[15]

[14] S60CC(3)(c)

[15] S60CC(3)(ca)

1. There is no issue in this case that both parents have contributed to the raising of the children and have continued since separation to be available for the children.  Despite their disagreements the parents have been able to work together to achieve positive outcomes for these children.  They are both family oriented.  When W had an opportunity to travel to (country omitted) in 2012 for a sporting fixture, the other children remained with their father by agreement and the mother travelled with W.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living[16]

[16] S60CC(3)(d)

1. The children have expressed a sense of being separated from each other in the event that the three younger children were to spend a week with their father.  This is clearly indicative of their close relationships.  The reality is however that this is not a case where there is any suggestion that they will be separated for any lengthy period of time or by any significant geographical distance.

2. The extent of their perceptions though must be accorded some weight.  In determining an arrangement that would provide an appropriate living arrangement with their parents, I also propose to consider the effect on the three younger children being away from their older siblings.  There is no doubt that both V and W will continue to visit their father and stay with him from time to time.  They are likely to do this when the younger children are with him.  They are also getting older and will want to explore more time with their friends even if they remain living with their mother into the future.  Notwithstanding this at least in the short term, the twins and Z will miss their older siblings whilst with their father.

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[17]

[17] S60CC(3)(e)

1. The parents currently live close to each other and when the father moves to his new home there will be no substantial difference in travelling time for the family.

The capacity of each of the child’s parents and 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[18]

[18] S60CC(3)(f)

1. The mother is concerned that the father relies heavily on the assistance of his mother in caring for the children.  She is concerned that he will not be sufficiently child focused in attending to their day to day needs.  Whilst the paternal grandmother has clearly been significantly involved in the care of these children and is likely to in the future even if the father has moved into his new home, there is no evidence to suggest the father is not able to meet the children’s needs.  There was some concern that the children were not doing their homework at the father’s household but at least around the time of the hearing that issue did not seem to be an ongoing one.  The mother was also concerned that the children were attending school with lollies in their lunch boxes but this issue was not significant.

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[19]

[19] S60CC(3)(g)

1. Both parents are Australian born of (country omitted) background.  The each hold to the traditions of the (religion omitted) Church and they want this to continue for their children.  Neither proposal would impede that.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents[20]

[20] S60CC(3)(i)

1. The mother was critical of the father accusing him of denigrating her to the children and for expressing his anger and frustration in front of the children.  This may well be the case however the mother has not been able to shield the children from her distress at the prospect of the shared care arrangement and the issues surrounding the separation.  The children clearly know the mother’s views.  Both parents have involved the children in the dispute.  In making that finding though I am not imputing any malicious intent on either parent.  No parent is perfect and in the context of the close family unit and the breakdown of the relationship, it is not surprising the children have been exposed to inappropriate comments.  The mother recently lost her mother which would no doubt have caused her further grief making it difficult for her to shield the children from any distress.

2. On balance I am satisfied that each parent is in the main child focused.  They both dearly love their children and want what is best for them.

Family Violence[21]

[21] S60CC(3)(j), (k)

1. Even though the mother gave evidence of an incident at Church on 18 August 2013, this issue was not canvassed at the hearing.  There are no family violence orders in place.

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[22]

[22] S60CC(3)(l)

1. Moving to an equal shared care arrangement has the potential to break down if the children do not adjust to the changes.  When one parent has not embraced such an arrangement there is an even greater chance of the arrangement not working well.  The report writer was of the opinion that family therapy would assist any necessary adjustment in transiting to such an arrangement.  Whilst there is much merit in what the report writer was suggesting, there is also an element of the unknown when children and parents embark on a course of therapy.  This makes it difficult to predict a timeframe for transitional changes raising the potential for further litigation.  This will not be in anyone’s interests especially the children’s.

Presumption of Equal Shared Parental Responsibility

1. I am satisfied that the presumption that it is in the best interests of the children that the parents have equal shared parental responsibility has not been rebutted.  There is no evidence of child abuse or family violence that would displace that presumption.  Both parties sought an order for equal shared parental responsibility notwithstanding the mother’s complaint that the parties are unable to communicate effectively.

2. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[23]  Unless there is a court order to the contrary, each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[24]  When a court has made an order for two (or more) people to share parental responsibility for a child, any decision involving a major long-term issue must be made jointly by those people after consulting each other.[25]  A major long-term issue in relation to a child means an issue:

   [23] S61B

   [24] S61C

   [25] S65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[26]

   [26] S.4

3. Although the parents have had disagreements about important issues affecting the children, including Z’s schooling, they have been able to make arrangements without compromising the children’s care or wellbeing.  I am satisfied they can communicate effectively to make the important decisions contemplated by the Act in equally sharing their parental responsibility and will make an order accordingly. 

Consideration of Equal Time or Substantial and Significant Time

1. Having applied the presumption and indicated I will make an order for equal shared parental responsibility, I am required to firstly consider whether it is in the best interests of the children and reasonably practicable for them to spend equal time with the parents.

2. The report writer is of the view that it is in the children’s best interests to transition to an equal time arrangement and to do so with the assistance of family therapy.  The father supports this but the mother remains concerned that the children will not cope.  A number of factors need to be taken into account when considering the practical implications of such an arrangement.[27]

   [27] S65DAA(5); T & N (2004) 31 Fam LR 281

3. The parties live in close proximity to each other.  The mother is in Property G and the father is currently in (omitted) but intends to move to Property M.  All suburbs are close enough to each other to enable the children to move relatively easily between the respective homes.  They would also be able to maintain their friendships from these suburbs.  The parents share similar cultural and religious values such that there will be similarities in both homes.  These considerations would support an equal shared care arrangement being reasonably practicable.

4. The parties however, approach parenting differently.  The father presented as someone who believed in a strong ‘rules based’ home environment and yet is likely to be less directional than the mother who has a commitment to the children’s education and encouragement.  They are also likely to have different emphasis on diet and routine.  These differences can have adverse impacts on children’s adjustment to shared care arrangements and for some that can be destabilising.  Stability was an important issue for the mother.  This is a factor to which I will give some weight which tips the scales against a shared care arrangement. 

5. The mother remains concerned that their communication is too poor to support a shared care arrangement given the practical implications entailed in such an arrangement.  It was argued that as the primary communication tool has been by way of text message, the court would have little confidence the parents will be able to address issues that arise.  Y has also been used as a messenger by the parties.  The mother gave examples in her affidavit evidence of difficulties surrounding arrangements for the children to attend football games, (country omitted) School, cricket and parent teacher interviews.  The father did not agree that these issues raised by the mother had been problematic.  He did however raise issues of difficulties in the mother seeking last minute changes to arrangements especially about collecting the children.  I am satisfied that there have been ongoing problems with the way the parents have been able to communicate and they have often disagreed about arrangements made by each other.  But there have also been times when the parties have been able to make alterations to arrangements without causing conflict.  In submissions the court was directed to a significant dispute that arose when the second report was released and the children became aware of the recommendations.  The mother and children found this distressing.  The mother made arrangements to take Y to the doctor and asked Y to ask his father if he could take their things to the mother’s home.  The father responded in a questioning way that was not received well.  In light of the mother’s distress and suffering a migraine at the time, I do not consider this to be an indicative example of their communication issues.  Having said that though, there clearly have been communication problems between the parties and whilst these issues may not be as extreme as is often seen in family law matters, they are of a nature that can adversely impact on the ongoing viability of a shared care arrangement.

6. The ability of the children to cope with being away from their older siblings for an extended period will also have a significant impact on the viability of a week about arrangement.  The report writer did not see this as a long term issue especially if the children were assisted by family therapy to pave the way for an incremental increase in time until a shared care arrangement was in place.  The father supported an incremental increase in time and the family therapy.  The mother maintained her opposition to a shared care arrangement but was supportive of family therapy if such an arrangement was to be ordered.  Her counsel submitted though that it would be premature to make final orders for a shared care arrangement until after the therapy because there is the unknown element as to the outcome of the therapy.  I accept that submission.  The strong ties between the siblings; the extent of the sense of responsibility borne by Y towards W; and the changing views of the children lead me to conclude that it will not be possible to predict how successful the family therapy might be.

7. When I weigh up the unknown prospects of the proposed family therapy, the communication difficulties and the different parenting styles, I am persuaded that an equal shared care arrangement would not be in the children’s best interests and that it would not be reasonably practicable as they outweigh the other factors that would otherwise favour such an arrangement.

8. Having rejected an equal time arrangement I am required to consider the children spending substantial and significant time with the parents.  In this case I am satisfied that the children should live primarily with their mother as she has been their primary carer and the older siblings, at least at this stage, continue to live with her.  The children identify the former matrimonial home as their home.  The communication issues that I considered above are also relevant to this consideration.  I anticipate there will be some ongoing communication difficulties but as I indicated above, fortunately, this is not a case of the difficulties being on the extreme end of the spectrum.  The twins clearly want to spend more time with their father and I am satisfied that this can be accommodated by way of a substantial and significant time order. 

1. X was open to spending overnights with her father on Wednesdays.  The mother supported this.  I am satisfied that all three young children would benefit by having this time with their father.  They currently have Wednesday afternoons with him returning to their mother at 7.30pm.  By spending the night with the father he will be able to take on more responsibility to ensure they are collected and sent to school mid-week and help them with their homework.  This will also give these children mid-week time with their father but not be away from their older sisters for any significant period of time.

2. The children currently spend from Friday afternoons to Monday mornings each alternate weekend with their father.  There was no evidence that the children were not coping with this arrangement.  I propose to continue that arrangement until the commencement of the third term of the 2014 school year.  By July 2014 the children would have been used to spending the extra overnight each week with their father.  W would have turned 18 by then and V would be approaching 20.  By this stage the children should be able to spend an extra night a fortnight with their father even if that means they will be spending a block period of time in the father’s household.  I propose to order that the time then increase to be from after school Wednesday to before school Monday in one week and from after school Wednesday to before school Thursday in the other week.  This will maintain the consistency with the Wednesday nights but add the Thursday night each second week.  This larger block period will see the children away from their mother and older sisters for 5 nights but they will still have a sense of their primary home being with their mother and it is likely that the older sisters will visit their father for at least some of the time the younger children are with him.  On balance I am persuaded that this outcome will enable the children to spend more time with their father but avoid the difficulties with an equal time arrangement to which I have referred.

3. I do not intend to make an order for family therapy despite the valid points made by the family report writer and counsel for the father.  The lack of an order should not be interpreted as a view that such therapy is not warranted.  I consider that it would be beneficial for the whole family but I would prefer the parents to consult with a medical practitioner who has regularly seen the children to determine if such therapy would be appropriate for them.  I am particularly concerned to ensure a sensitive approach is adopted for both W and Y.

4. For these reasons I make the orders set out at the commencement of this judgment. 

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  4 December 2013