Ledersole and Ledersole

FAMILY COURT OF AUSTRALIA

LEDERSOLE & LEDERSOLE

[2009] FamCA 279

FAMILY LAW – CHILDREN – Parties agree to have equal shared parental responsibility, that the children live with the mother and spend substantial and significant time with the father – in issue was the amount of time the children should spend with the father – where children very young at separation – importance of attachments while children young – a developmentally appropriate approach to increasing the children’s time with the father ordered

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C(1), 61DA(2), 61DB, 64A, 65AA, 65DAA,

Goode and Goode (2006) FLC 93-286

APPLICANT:

Ms Ledersole

RESPONDENT:

Mr Ledersole

FILE NUMBER:

NCC

198

2007

DATE DELIVERED:

16 April 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

12 & 13 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr M Graham
SOLICITOR FOR THE APPLICANT:	MRM Lawyers
COUNSEL FOR THE RESPONDENT:	Mr C Boyd
SOLICITOR FOR THE RESPONDENT:	Ticehurst Foat

Orders

IT IS ORDERED BY CONSENT

That all previous orders regarding the children O born … March 2005 and D born … June 2006 (“the children”) be discharged.
The children shall live with the mother.
The parents have equal shared parental responsibility.
In the event that the children would not ordinarily spend time with the father or the mother on each of the children’s birthdays, they shall spend time with that parent from 3.30 pm until 7.00 pm if a school day and from 12.00 noon until 5.00 pm on non-school days.
On days when the children are at school or at preschool the father shall collect the children from the pre-school and/or school at the commencement of his time with the children not later than 4.00 pm and he shall return the children to the mother’s residence or day care/preschool/school at the conclusion not earlier than 8.30 am.
That each party notify the other in writing at least 14 days prior to any change of his or her residence.
That the parties are restrained from residing more than 50 kilometres radius from Newcastle Post Office without the written consent of the other or court order.
That neither party denigrate the other nor permit any other person to do so in the presence or hearing of the children.
That each party gives the other authority to obtain such information from any school or medical practitioner attended by the children or either of them as that party may reasonably request.
That each party shall contact the other forthwith in the event of any medical emergency concerning either of the children including but not limited to any hospitalisation of such child.
The children shall communicate by telephone with the parent with whom they are not spending time during school holidays in accordance with Order 12.

IT IS FURTHER ORDERED:

On a four weekly cycle the children shall spend time and communicate with the father during NSW gazetted school terms as set out below:
Commencing forthwith and until the commencement of Term 4, 2009:
(a)       Weeks 1 and 3:
(i)Monday between 5.00 pm and 6.00 pm by telephone.
(ii)Wednesday commencing at 3:30 pm until 6:30 pm.
(iii)Friday commencing at 3:30 pm until 3:30 pm Sunday.
(b)       Weeks 2 and 4
(i)Tuesday between 5.00 pm and 6.00 pm by telephone.
(ii)Wednesday commencing at 3:30 pm until 8:30 am Thursday.
(iii)Friday between 5.00 pm and 6.00 pm by telephone.
From the start of Term 4, 2009 and until the start of Term 1, 2013:
(c)       Weeks 1 and 3:
(i)Monday between 5.00 pm and 6.00 pm by telephone.
(ii)Wednesday commencing at 3:30 pm until 6:30 pm.
(iii)Friday commencing at 3:30 pm until 8:30 am Monday.
(d)       Weeks 2 and 4
(i)Wednesday commencing at 3:30 pm until 6:30 pm.
(ii)Friday between 5.00 pm and 6.00 pm by telephone.
From the start of Term 1, 2013:
(e)       Weeks 1 and 3:
(i)Monday between 5.00 pm and 6.00 pm by telephone.
(ii)Friday commencing at 3:30 pm until 8:30 am Tuesday.
(f)       Weeks 2 and 4:
(i)Wednesday commencing at 3:30 pm until 7.00 pm.
(ii)Friday between 5.00 pm and 6.00 pm by telephone.
During NSW gazetted school holidays the children shall spend time with the father as set out below:
(a)From the commencement of these orders until the start of NSW gazetted Term 1, 2010:
(i)From 3:30pm 24 April 2009 until 3:30pm 26 April 2009.
(ii)At the end of Term 2, 2009 for five consecutive days during week 1 commencing at 3:30 pm on the first day and concluding at 3:30 pm on the last day.
(iii)At the end of Term 3, 2009 for six consecutive days during week 1 commencing at 3:30 pm on the first day and concluding at 3:30 pm on the last day.
(iv)At the end of Term 4, 2009 for seven consecutive days and nights during the second week of January 2010, commencing at 3:30 pm on the first day and concluding at 3:30 pm on the last day.
(b) From the commencement of NSW gazetted Term 1, 2010:
(i)At the end of Term 1 for two consecutive days and nights being the middle weekend of the school holidays from 3:30 pm on the Friday of week 1 and concluding 3:30 pm on the Sunday. This order shall not apply in odd numbered years when Easter coincides with the school holidays or in even numbered years when Easter coincides with the middle weekend of the school holidays.
(ii)At the end of Terms 2 and 3 from the conclusion of classes until 8:30 am on the second Sunday thereafter.
(iii)At the end of Term 4 for 16 consecutive days and nights being the second and third weeks of January. Unless the parties agree on a different start time, this will commence at 10.00 am on the second Sunday each January.
For the purpose of these orders gazetted school holidays commence from the last gazetted day of classes and end the day before school resumes.
The children shall spend the following special occasions with the father:
(i)In odd numbered years from 3:30 pm on 25 December until 3:30 pm on 27 December.
(ii)In even numbered years from 3:30 pm on 23 December until 3:30 pm on 25 December.
(iii)In odd numbered years from 3:30 pm or the end of day care / pre-school / school on Easter until 8:30 am on Easter Tuesday.
(iv)On the Father’s Day weekend from 3:30 pm Friday to 5.00 pm Sunday.
(v)If the father’s time with the children coincides with the Queen’s Birthday holiday it shall be extended to include that day.
(vi)Each year from 3:30 pm on 24 April to 3:30 pm on 25 April.
The father’s time with the children is suspended so that the children are with the mother:
(i)In odd numbered years from 3:30 pm on 23 December until 3:30 pm on 25 December.
(ii)In even numbered years from 3:30 pm on 25 December until 3:30 pm on 27 December.
(iii)In event the mother wishes to take the children away on holidays for the whole of the end of Term 1 school holidays, commencing Term 1, 2011 the mother may suspend the father’s entitlement to spend time with the children during those holidays. The mother may not by this order suspend the father’s time with the children for Anzac Day. It is a condition precedent that the mother gives the father no less than six weeks written notice that she is activating her suspension entitlement pursuant to this order. If by this order the father is deprived of time with the children, the time forgone shall made up at times nominated by him. It is a condition precedent that the father gives the mother six weeks written notice of his nominated make up times and that the times nominated do not deprive the children of spending time with the mother on a special occasion of a type identified in these orders or on her birthday.
(iv)In even numbered years from 3:30 pm or the end of day care / pre-school/school on Easter Thursday until 8:30 am Easter Tuesday.
(v)On the Mother’s Day weekend from after day care/school Friday until the start of day care/school Monday.
(vi)In the week each child commences school for the first time his time with the children on Wednesday afternoon shall start at 4:30 pm.
(vii)In the week each child commences school for the first time weekend time, if scheduled for the first weekend of the school term, shall be limited to the period from 3:30 pm Friday until 3:30 pm Sunday.
On those occasions where the practical effect of these orders is that the mother is required to collect the children on Wednesday evenings from the father’s home, the children’s time with the father will finish half an hour earlier than that which is provided for in the above orders.
The father, at his election, may on Wednesday nights return the children to the mother at her home at the time provided for in the above orders.
Other than those occasions when the father is collecting the children from school or pre-school, the father shall collect the children from the mother’s home.
Subject to Order 18 and other than those occasions when the father is returning the children to school or pre-school, the mother shall collect the children from the father’s home.
If either child should be required to be collected from day care/ preschool/ school earlier than the usual designated finish time then the parent who is to spend time with the child that night is to collect the child from day care/ preschool/ school.
Where by these orders a parent is entitled to contact the children by telephone, that parent shall telephone the children on the nominated number at the appointed time. If the children are unavailable the parent in whose care the children then are shall cause the children to return any missed call within 24 hours.
Nothing in these orders restrains the father from attending each child’s enrolment day, orientation day and first day of school. (The Court notes that the mother supports this proposal.)
Each party will provide the other with current home, mobile and work telephone numbers and current residential, postal and email addresses.
The parties shall consult with one another prior to implementing any long term issues or arrangements for the children, including but not limited to those matters which the Family Law Act 1975 requires as well as registration for routine sporting and other extracurricular activities.
On any occasion that the children receive medical or any other health consultation or treatment, the accompanying parent shall request the treating practitioner to provide the other parent with any such information regarding the children’s condition as that parent may request.
The parties will promptly notify one another of any doctor or health professional (including the name, address and telephone contact number) treating either or both of children.
The parties will promptly provide to one another copies of all significant medical reports received in relation to the children.
Within 28 days the parties shall place their names with a community based counselling organisation or other agreed counsellor so as to commence an appropriate course designed to improve communication between them.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the attached fact sheet and these particulars are included in these orders.
That all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC198 of 2007

MS LEDERSOLE

Applicant

And

MR LEDERSOLE

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning the parties’ two children, O and D. O recently turned 4 years old and D will shortly turn 3. By agreement the children will continue living with the mother and spending time with the father.
The central issues concern the frequency and duration of the children’s time with the father. While the points of difference are by reference to many matters which come before this Court relatively minor, each party strongly adheres to their respective proposals as being arrangements which strike the correct balance between promoting the children’s relationship with the father and maintaining reasonable order in their lives. Since separation the parties’ trust in each other has waned and presently their relationship and thus their ability to communicate easily is strained. So as to ensure the father’s active involvement in the children’s lives, not only practically but also in the exercise of his parental responsibility, he provided a raft of orders designed to ensure he is never again sidelined. The mother considers aspects of these to be onerous and the extent to which these would be appropriate is another issue.
At the outset it is important to acknowledge that the parties are strongly committed to providing the children with those opportunities within their gift. Provided the parties do not allow their distrust for each other to compromise their parenting capacity the children should have a wonderful childhood.

Background facts

In November 1970 the father was born.
The mother was born in November 1972.
In about October 2003 the parties began living together in Western Australia where the father worked and the mother joined him from Newcastle.
The parties married in January 2004 in Newcastle.
The parties’ first child, O, was born in March 2005. Prior to O’s birth the parties agreed the mother would relinquish paid employment and that she would take on primary day to day responsibility for the upbringing of the children. This was on the basis that the father would continue to have financial responsibility for the family.
Prior to O’s birth the father’s usual work regime involved a fly-in, fly-out arrangement working in remote parts of Western Australia. Usually, the father worked two weeks away and followed by one week at home. Following O’s birth this regime changed with the father’s periods away reduced to nine days on, five days off in a “fly-in, fly-out” arrangement. Under this regime he was away from home no more than eight nights at a time.
With the same employer on 1 March 2006 the father transferred to an office position in Perth. This was a promotional opportunity and involved the father usually working between 50 and 55 hours each week.
The parties’ second child, D, was born in June 2006.
In September 2006, O was enrolled in day care for two days per week.
In September 2006 the mother and children holidayed with the maternal grandparents at their home in the Nelson Bay area. The father remained in Perth and joined the family there for a week’s annual leave. At the mother’s suggestion when the parties returned to Perth they commenced marriage counselling.
The father commenced three weeks annual leave on 27 December 2006. During this period the mother arranged for the maternal grandmother to travel to Perth and accompany her and the children back to the maternal grandparents’ home near Nelson Bay. The mother told the father that she needed time away to reflect upon the future of their marriage. The father, who hoped the marriage would continue, made it clear to the mother that although he accepted the children should be with her whilst she contemplated whether or not to continue the marriage, he did not agree that the mother could change the children’s residence.
On 12 January 2007 the mother, children and maternal grandmother travelled to Nelson Bay. The parties have not resumed cohabitation.
On 22 January 2007 the mother commenced parenting proceedings in the Federal Magistrates Court.
In a telephone conversation on 23 January 2007 the mother informed the father their marriage was over and that she and the children were not returning to Perth. The father believes the mother manipulated his agreement to her removing the children from Perth and that when she left with the children she had no intention of returning. Having regard to the sequence of events and notwithstanding the mother’s denials, the father’s views reflect the reality of the situation.
On 1 February 2007 the father flew to Newcastle where the mother met him with the children. This is the first time the father had seen the children since their departure from Perth. The father remained in New South Wales for about two weeks during which he saw the children every couple of days for three to four hours at a time. At the mother’s insistence these visits occurred at Nelson Bay under her supervision. The mother insisted upon supervision so as to ensure the father could not retain the children and/or take them back to Perth. Although this reassured the mother it was unnecessary and heavy handed.
For approximately one week on 10 March 2007 the father returned to Newcastle. During this period he spent time with the children every day or so for three to four hours at a time. Commencing on 14 March 2007 his time with the children was unsupervised.
On 16 March 2007 interim consent orders (“interim consent orders”) were made in the Federal Magistrates Court. These were predicated on the basis that the father would look for work in the Hunter region and until he returned permanently the father would take every opportunity to visit the children. Order 5 of the interim consent orders contained a schedule for the father’s visits with the children with the periods initially ranging from 9.00am to 3.00pm and which quickly extended to two days and overnights and up to eight days and nights duration. Regular telephone contact was provided for and arrangements made to ensure the mother kept the father informed about matters involving the children.
The father spent time with the children as provided for in the interim consent orders with minor variations made by agreement.
At the beginning of September 2007 the father secured a transfer to Newcastle.
On 12 September 2007 the parties agreed on further interim orders (“further interim consent orders”). Concerning the father’s time with the children, Order 5 of the interim consent orders was discharged with the father’s future time with the children to comprise the following:
(a)    Commencing 15 September 2007 each alternate weekend from 9.00 am Saturday to 3.00 pm Sunday.
(b)    Each alternate week following the first weekend, from 4.30 pm Thursday to 8.30 am Friday.
(c)    Commencing 22 September 2007 each second weekend for four hours on Saturday and Sunday.
(d)    Overnight each alternate weekend following the second weekend from 4.30 pm Wednesday to 8.30 am - 9.00 am Thursday.
(e)    Boxing Day 2007 overnight.
Included in the further interim consent orders is a notation that the father would undertake a child development course involving behaviour management strategies for young children.
On 20 December 2007 the proceedings were transferred to the Family Court of Australia.
On 18 March 2008 the parties were divorced.
On 21 April 2008 the parties entered into final property orders. In summary, the effect of the final property orders was that the proceeds of sale in the father’s property in M would be distributed so that the mother received $632,500 and the balance, which was expected to be in the vicinity of $306,000, retained by the father.
This Div 12A hearing commenced before me on 10 July 2008. On that day the following orders and notations were made:
1.      That by consent and pending further order, the Court makes orders and notations in accordance with the document drafted and handed up by the parties this day, herein set out as follows:
(1)That the mother be restrained from moving the children’s principal place of residence more than 50km from [E] post office without the written consent of the father or court order.
Notation:
The father is intending to seek a residence for himself within 50km radius of [E] post office.
2.      That the matter be adjourned to 9.30 am on 14 August 2009. On that occasion the parties are excused from attending in person only if there are terms.
3.      That pursuant to section 11F the parties are to confer with Ms [L], Family Consultant of this Court, to arrange a child dispute conference.

On 12 January 2009, following a four night stay with the father, the mother observed redness and healing scrape marks on O’s right ankle. O told the mother that the father dragged her along the ground. Three days later O told the mother the father had been hitting her. The mother spoke with her solicitor and correspondence was forwarded to the father’s solicitor concerning O’s remarks.
O was reluctant to spend time with the father on the weekend commencing 16 January 2009. With both parents’ encouragement O overcame her reluctance and went with the father.
Upon O’s return from the weekend with the father, the mother noticed bruising which appeared to include linear lines as might be left from a hand print on her bottom. O told the mother that the father hit her, which he had. The following day the mother took O to a doctor, by which time the bruising and marks had largely faded.
Notwithstanding the mother’s understandable concerns, she appropriately continued to facilitate the children’s contact with the father.
On 29 January 2009 the mother filed an Application in a Case seeking orders which restrained the father from using corporal punishment on the children.
The mother’s application came before the Court on 16 February 2009 at which time, by consent and without admissions, the father was restrained from physically disciplining the children or permitting any other person to do so.

Agreed orders

During the hearing the parties agreed upon orders[1] summarised below:
[1] Exhibit “I”
(a)That all previous orders regarding the children be discharged.
(b)The children live with the mother.
(c)The parties have equal shared parental responsibility for the children.
(d)In the event the children would not ordinarily spend time a parent on each of the children’s birthdays, they would spend time with that parent from 3.30 pm to 7.30 pm if a school day and from 12.00 noon to 5.00 pm on non-school days.
(e)On days when the children are at school or pre-school the father collect the children from the pre-school or school at the commencement of his time not later than 4.00 pm and return the children to the mother’s residence or day care/pre-school/school no earlier than 8.30 am at the conclusion.
(f)Each party to notify the other in writing at least 14 days prior to any change of residence.
(g)The parties are restrained from residing more than 50 kilometres radius from Newcastle Post Office without the written consent of the other or order.
(h)Neither party denigrate the other permits any other person to do so in the presence or hearing of the children.
(i)Each party gives the other authority to obtain such information from any school or medical practitioner attended by the children or either of them as that party may reasonably request.
(j)That each party immediately contact the other in the event of any medical emergency concerning either of the children including but not limited to hospitalisation.

The Family Report

On 14 August 2008 a Family Report was ordered.
Ms L (“Family Consultant”) prepared the Family Report[2] in relation to which she was requested to address the following matters:
(a)The children’s developmental stages and needs.
(b)The children’s attachment with each of the parents.
(c)The nature of the children’s relationship with each other.
(d)The effect on the children of changing their circumstances.
(e)The parties’ capacity to meet the children’s emotional and psychological needs.
(f)Recommendations as to how the children’s living arrangements may change so as to enable the children to have a meaningful relationship with both parents.
(g)Any other matter which the family consultant considered relevant.
[2] Exhibit “D”
The family consultant interviewed the parties on 15 December 2008 and observed the children with each of their parents. The maternal grandparents attended the interviews and were also interviewed.
The Family Consultant had previously met the parties. Pursuant to s 11F she conducted Child Dispute Conferences on 14 April 2008, 22 April 2008, 5 May 2008, 23 June 2008, and 28 July 2008. This level of input is unusual and reflects the Court’s and the Family Consultant’s commitment to assist two good parents adjust to post-separation parenting, particularly in the challenging circumstances these parents faced, that is with very young children at separation and initially living on either side of the country. On a number of occasions during the s 11F Child Dispute Conferences the parties reached agreement only to find subsequent consensus elusive.
As this background suggests the family consultant developed an in-depth understanding of the parties, children and family dynamics. In the family report and her oral testimony the Family Consultant maintained a clear focus on the children’s well-being. It was clear the Family Consultant was not influenced by erroneous or irrelevant considerations. Having updated herself on matters which occurred subsequent to the Family Report dated 19 December 2008 and the hearing, the Family Consultant maintained her recommendations. These are:
(a)That the parties have shared parental responsibility for decisions regarding the children.
(b)The children live with the mother and spend time with the father as currently occurs.
(c)From October 2009 this time should be increased to alternate weekends from Fridays to Mondays and then overnight in the other week.
(d)Additional time during school holidays on a gradually increasing basis along the lines agreed between the parties. Here, the Family Consultant referred to the parties’ agreement to “a gradually increasing number of days in the school holidays in 2009 so that by the end of 2009 the children can spend periods of a week with the father”.
(e)Regular telephone contact as per the current agreement.
(f)Referral to a community-based agency to assist the parties improve their communication.
The Family Consultant’s recommendations and evidence carries significant weight.

The general law in parenting cases

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)         to explore the full extent of that culture, consistent                   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(2)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility s 65DAA considerations do not apply.

The mother’s circumstances

The mother lives with the children at E which is where she proposes to live indefinitely. E is north of Newcastle and south of the Nelson Bay area where the maternal grandparents reside. The home provides the mother and children with a comfortable standard of accommodation.
The mother is a teacher. Her career has been largely with the New South Wales Department of Education, with whom she last worked as a teacher/assistant principal in late 2003. After the mother moved to Perth, she undertook a short period of temporary teaching. The mother has not had paid employment since the children were born. In October 2009 the mother’s maternity leave and leave without pay will expire at which time she will resign. Once both children are at pre-school/school the mother plans to seek casual teaching work one or two days a week during school term.
O attends day care each Monday and Tuesday. D will shortly start at the same centre. The parties agree that O will start school in 2010. In her affidavit the mother said “I intend to enrol both children when it’s time to commence school at the closest school in our “drawing area”. This was the tenor of the mother’s oral testimony. It is illustrative of a style of communication and decision-making which is somewhat dismissive of the mother’s obligation to consult with the father on important matters. Later in this judgment I will refer to instances where the father’s communication with the mother has been similarly dismissive.
For 18 months after the parties separated the mother and children lived with the maternal grandparents. The maternal grandparents, mother and children are close and usually see each other a few times each week. The maternal grandparents are available to offer practical support and assistance to the mother should she need it.
The maternal grandfather gave evidence. He was an impressive witness who spoke fondly of his grandchildren and with admiration for his daughter’s parenting ability. The maternal grandfather’s testimony was not subject to significant challenge and I have no difficulty accepting his evidence on factual matters.
I am comfortably satisfied that the mother and maternal grandparents are committed to the children’s relationship with the father and would like an outcome which sees the children able to move easily between the parties and for the parties to be able to communicate effectively.
The mother does not have internet access connected to her home. It is her evidence she is unable to afford it. She has a facsimile machine which she uses to send messages to the father about the children. The father would prefer the mother to reconnect to the internet so that they could communicate more easily and without the distraction of facsimile’s coming through at night and disturbing the house. I have considerable sympathy for the father’s position and encourage the mother to reflect upon the wisdom of maintaining a probably unnecessary stance.

The father’s circumstances

The father resides alone in a home on which he has a 12 month lease and where he is likely to reside for the foreseeable future. When the father’s financial circumstances permit, he plans to purchase a home. He is presently minded to purchase a home in the Newcastle region. The father had contemplated living in E or an adjacent suburb. While this would have made it easier for the children in the sense that travel between their parents’ homes would have been effortless, the parties agreed that living so close, in a relatively small community, meant they would have little privacy. Neither believed such a lack of privacy was likely to enhance their capacity to improve their relationship. Consequently the father wisely decided to live in Newcastle where he has established a pleasant living environment for himself and the children.
The father is an engineer, having graduated from University. In 1998 he commenced employment in Western Australia. There the father’s career in the engineering industry was progressing and had he remained in Western Australia he expected he would continue his upwards progression in the industry. The father’s decision to return to New South Wales so as to maintain his relationship with the children has involved a sideways step in a career sense and he is uncertain whether the opportunities available to him in Western Australia will be replicated here. This is not an issue of job security but of career advancement.
When the father’s current employment contract expires at the end of 2009 he is confident that he will secure either further employment with the same company, or elsewhere in Newcastle. The father rejected suggestions that the current downturn in the economy meant it may be likely he would need to return to mining work, for example, in Singleton or elsewhere in the upper Hunter Valley. The father readily conceded his work is demanding and at times stressful. For his own and the children’s sake the father appreciates he needs to acquire necessary skills which would enable him to strike an appropriate balance between managing stress and caring for the children.
The paternal grandparents, aunt and uncle live south of Newcastle on the south western reaches of Lake Macquarie. It is within 50 kilometres from Newcastle[3]. The father is close to his parents, sister and brother-in-law. The father’s sister and brother-in-law have two children, aged 6 and 2 years respectively. O and D regularly spend time with their paternal relatives and have a happy and affectionate relationship with the adults and their cousins.
[3] Exhibit “E”
The father’s sister gave evidence. The father’s sister and her husband are both clinical psychologists. The father’s sister has considerable experience in child and family health, parent education and child protection. She agreed with the father that theirs is a particularly close relationship and it is clear that she and her husband offer the father personal as well as skilled support. As to the latter, this is in the sense of skilled observations of the children and practical advice, when sought, concerning them. This is entirely appropriate and ought not, to as the mother appeared to, be the subject of critical comment.

Following the parties’ separation between March 2007 and September 2008 the father and children spent a significant component of their time together at the father’s sister’s home. Since then, face to face contact is at least monthly, and often fortnightly. Contact occurs in the father’s sister’s home and the father’s home as well as family outings.
The father’s sister withstood, with commendable calm, surprisingly rigorous cross-examination, the effect of which was to strengthen my positive early impression of her. The father’s sister is obviously committed to ensuring her present good relationships with the father and children continue and promoting good relationships between her children, O and D. The tenor of her evidence left me comfortably satisfied that the paternal family aspires to an outcome which sees the children able to move freely between the parties and for the parties to be able to communicate comfortably.
On the Monday immediately preceding this hearing the father began counselling with Mr A. For some time he had been contemplating seeing a counsellor. Following receipt of the Family Report on 12 January 2009 the father spoke with his brother-in-law, who provided the father with a list of names, including Mr A’s. The father anticipates he will continue consulting Mr A for a few months. The consultations are to be fortnightly and at this stage they will focus on issues arising from the marriage breakdown, stresses associated with this litigation and child-rearing strategies.
The gravamen of cross-examination was that this recent attendance upon Mr A should be seen as a cynical and belated attempted to demonstrate that the father is addressing the ongoing stress in his life. In the nine months between the separation and the father’s relocation back to Newcastle he attended counselling through an employee assistance program. He has also willingly attended numerous appointments with the Family Consultant. The significance of this is that the father has demonstrated insight into the advantages of participating in counselling and a commitment to attend counselling over a prolonged period.
I accept the father’s evidence that he will attend upon Mr A for as long as he feels it is beneficial. In deciding to stop seeing Mr A the father is sensible enough to consider Mr A’s advice about the desirability of continuing compared to stopping. Although he did not say he would, it is highly probable the father would discuss with his sister and brother-in-law whether or not he should continue counselling and reflect positively upon their advice. The father is accepted as being genuine in his willingness to accept professional assistance concerning the matters upon which he is consulting Mr A.
The father agreed with the mother’s proposition that he is angry with her and to a considerable extent blames her for breaking up their family. It appropriate to record that the father was subjected to unusually aggressive cross-examination which he accepted with commendable calm. If it was designed to provoke an outburst from the father it did not. The effect was to demonstrate that the father is able to deal appropriately with significant stress. The father readily acknowledged the mother’s good parenting ability and her undoubted commitment to the children. He is, however, distrustful of the mother’s commitment to his relationship with the children and believes she, at best, plays lip service to his desire to be intimately involved in the children’s lives, including participating in important decisions for them.
Curiously he has been dismissive of the mother’s many attempts to discuss her desire for a shared approach to discipline and refuses to speak with her when she raises issues with him at changeover. Whilst I agree with the father that discussing contentious issues about the children in their presence is inappropriate, he must take some responsibility for the situation. When the mother invited the father into her home in January 2009 so that between them the parents could settle O down and encourage her to go with the father, he ought to have spoken politely with the mother. His refusal to speak to her was not only boorish behaviour on his part, but if it continues, sets up a dynamic from which the children will ultimately discern that he does not like the mother. This would be a heavy and unnecessary burden for the children.
These issues were explored at length during the father’s oral testimony. He appreciates the necessity that he adopt a better approach to contact with the mother and I am cautiously optimistic, that with Mr A’s and his sister and brother in law’s assistance, the father’s anger with the mother is likely to dissipate and his ability to communicate with her will improve.
Since separation the father has always paid timely and appropriate child support. There is no reason to doubt that this will continue.

Section 60CC(2) considerations

Section 60CC(2) comprises the primary considerations, which subject to subsection (5) the Court must consider in determining the children’s best interests. Section 60CC(2)(a) concerns the benefit to the children of having a meaningful relationship with both of their parents. These words do not define the amount of time a child should spend with parents and are qualitative rather than quantitative. For reasons I will discuss later I am satisfied both children enjoy warm and loving relationships with each of their parents. The children identify with their parents in this capacity. However, relationships do not exist in a vacuum and unless children spend sufficient time with each of their parents not only are existing relationships likely to be compromised but as time passes insufficient quality time is likely to result in the children questioning the value of these key relationships. Each of the parents has the attributes which, provided each has sufficient time with the children, will ensure that the children reap the benefits of healthy and loving relationships with their parents. Emotionally, intellectually and psychologically these meaningful relationships will ensure the children’s best interests are achieved.
Section 60CC(2)(b) concerns the need to protect the children from physical or psychological harm and from being exposed to abuse, neglect or family violence. When the mother filed her Application in a Case to restrain the father from using corporal punishment on the children, she filed a Notice of Child Abuse. For about the last twelve months, approximately monthly, the father had hit O. O is an articulate and determined child willing to challenge her parents’ limit setting. The father’s sister described seeing O “turning away when spoken to, refusing to comply with polite and reasonable requests, and throwing herself on the floor crying and screaming when limits are set”.So that is it clear, the father’s sister considers these behaviours common amongst pre-schoolers and her observations of the children is that they are “lovely children” who are positive and polite. All witnesses, however, confirm that O can be headstrong and where the parents differ is the extent to which they are able to easily temper O’s misbehaviour. The mother has not and will not use corporal punishment.
Attached to the mother’s affidavit are three photographs of O. The first photograph was taken of O’s right ankle on 6 January 2009. The photograph shows the ankle is red and there are four small grazes. In the father’s presence and in response to the mother’s question to O about what happened to her, O replied “that is where Daddy dragged me along the ground”. The father explained the incident thus:
On the afternoon of Monday 5 January 2009, after [O] was repeatedly disobedient and defiant, I said to her ‘go to your room’. She kept coming out of the room and I took her by the upper arm to go back towards the room. When I did this, she let her legs drag under and behind her while I kept talking with her. As she walked, she was kicking out and screaming. We were going down a corridor with timber floorboards with gaps in between them. When we got to the end of the corridor, [O] said: ‘my leg is hurting’. I looked and saw a very small graze of skin on her right ankle. I examined her ankle and said to her: ‘I am sorry your ankle is sore, but you must do as you are told and cooperate when you have been sent to time out. You must walk to your room when I tell you to and not ‘turn your legs off’.
The children were with the father for the weekend 16 to 18 January 2009. At about 6:20 pm on 18 January 2009, when the mother was undressing O for her bath, she observed a distinct red mark on the right cheek of the child’s bottom. O told the mother “Daddy hit me. It is very sore”.This was consistent with the mother’s opinion that she thought she could see the outline of several fingers on the child’s bottom. The mother took colour photographs which are attached to her affidavit. In doing so she unnecessarily involved O in resolution of this issue and probably sent an unspoken message condemnatory of the father. The following day the mother took O to the doctor. As the photographs demonstrate there was no medical reason to do so. This attendance involved O in an examination of the area where her father hit her and probably further discussion of the incident. It was unnecessary and again sent an inappropriately condemnatory message about the father.
The photographs reveal two clear linear marks with associated light bruising. Concerning this incident, the father says:
I recall that [O] was doing a lot of dancing, jumping and spinning around on one foot. On a number of occasions she fell, once on the kitchen floor and once onto the edge of the concrete floor of the laundry, outside the back door. On both occasions she was upset and cried as she appeared to have hurt herself. [D] also slipped over on a towel on the bathroom floor, and landed flat on his backside. I also recall [O] doing something like this.
Early on Sunday morning 18 January 2009, [O] was rude and disobedient to me following a request to her to follow a simple instruction. I asked her five times to go to her room for time out. Each time, when she would not do so, I said to her that she had lost another ‘good behaviour star’ and I walked to the kitchen to remove the star from the whiteboard there. She had lost one star on Saturday for misbehaving and a further four stars on the Sunday morning. [O] continued to refuse my instructions and walked up into my bedroom and proceeded to grab the sheets and doona, pulling them on the floor and saying: ‘No Daddy’. I was attempting to make the bed. She was in a tantrum and I smacked her once firmly across the middle of her bottom with my right hand and said: ‘Go to your room’. She cried and ran to her room and continued the tantrum. I followed her there and said: ‘Calm down’. We will talk about your behaviour when you have calmed down.’ At the time, she was sitting on her bed saying ‘Mummy, Mummy, Mummy’. I left the room and returned and calmed her, before having a conversation with her about her behaviour.
The father was uncertain whether his firm smack on the child’s bottom caused the marks and bruising. He considered it possible that the child’s bouncing and falling, referred to in the first quoted paragraph, was the most likely cause of the injury. It is the presence of two linear marks which satisfies me he caused the marks when he hit her. While it is feasible one linear mark would have been caused when she fell on the laundry step, nothing in the father’s description of events that weekend explained why there would be two, other than because he hit her sufficiently hard to bruise her.
The father has not hit either child since 20 January 2009. He readily agreed to a permanent injunction restraining him from using corporal punishment. The father has struggled to design effective and age appropriate discipline techniques with O. He has the intelligence, love for his children and motivation to adapt his many non-corporal discipline strategies so that his reasonable rules are obeyed and where limits when breached do not involve the risk the children will be hurt. The father’s distress about these incidents was evident and there is only a remote theoretical possibility that he may in the future use corporal punishment. I am strongly satisfied he will not.
It is important that both parties reflect on how they have dealt with these incidents. The mother needs to understand that she had the advantage of caring for the children in their usual routines. The father and children have been establishing theirs and the challenges which he has faced have been more complicated than hers. That O has been more challenging with the father is thus understandable and ought not to be interpreted as support for one particular parenting style being inherently superior to another. Fortunately neither the father’s physical discipline nor the mother’s somewhat inappropriate handling of the issue has had a continuing impact on their daughter.
Having regards to these findings I am satisfied that is no risk the children will be exposed to abuse, violence or neglect in either parties’ care.

Section 60CC(3) considerations

Subsection (a) concerns a child’s views and factors relevant to the weight given to them. At just four and two years of age the children are too young to understand the issues in these proceedings. From time to time O has been unsettled and upset immediately before and after spending time with the father, particularly around mid-week visits. On a number of occasions in January 2009 she needed encouragement to overcome her initial preference to not go with the father. All parties, and by implication the Family Consultant, see this behaviour as reactive to particular moments and not indicative of the child holding a view against spending time regularly with the father. The strength of the children’s relationships with the father, which I will later discuss, indicates how important it is to not over-emphasise these events.
Subsection (b) concerns the nature of the children’s relationships with their parents and other significant people, including grandparents. The Family Consultant observed the children with each of their parents. Concerning O she reported:
In observation between the child and the father, the child was observed to comfortably interact with her father.
In observations between the child and the mother the child was observed to be very animated, demonstrating that she has a close and loving relationship with her mother.
In relation to D the Family Consultant described him as “a happy child” who:
[a]ppeared to be present developmentally within normal parameters. He identifies objects correctly and appears able to clearly make his needs known. He appeared to be a well-behaved and compliant child.
In relation to her observations of D with each of the parents, the Family Consultant reported:
In observation between the child and the father, the child was observed to play cars with his father and then with some Play-Doh. He related in a familiar and relaxed way with his father demonstrating a close and comfortable relationship with him.
In observation between the child and the mother, the child was observed to interact well with her, demonstrating a close and mutually loving relationship.
The Family Consultant concluded that the children are at an age where they are primarily attached to their mother. She opined that the children have a strong secondary attachment to their father. With these opinions the parties agree.
In their discussions with the Family Consultant, the maternal grandparents spoke with affection for their grandchildren. They perceive that they enjoy a very close relationship with them which perception is borne out by the evidence.
Although the children have not had as much time with their paternal grandparents and relatives as with their maternal grandparents, it has been quite substantial. The father and the father’s sister’s evidence revealed that the children enjoy strong and happy relationships with these paternal relatives.
The children’s relationships with their parents and the relatives to whom I have made reference are fundamental to the children’s senses of identity and happiness. It is important for the children that they are afforded the opportunity to have sufficient time with all of these people for these relationships to continue to flourish. Prolonged or unnecessary separations from any of these people is contra-indicated. The parties each take primary responsibility for promoting the children’s relationships within their respective families and will continue to do so. In the father’s case, he having conceded that the children will primarily live with the mother, it is necessary to ensure he has sufficient time with the children to be able to nurture his own relationships with them as well as sufficient time to promote the children’s relationships with his family but not at the expense of his own. These are findings to which I attach significant weight.
Subsection (c) concerns the parents’ willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. Both parents are somewhat suspicious of the other’s support for their relationship with the children. For a considerable period the father pressed for an equal division of the children’s time between the parties. The mother considered this demonstrated his lack of understanding of the children’s emotional and developmental needs as well as hinting at his unwillingness to facilitate the children’s relationship with her. With the former proposition I agree but not the latter. Throughout these proceedings the father has been unfailingly positive about the benefits to the children of their relationship with the mother. There is nothing to which I have been taken which gives me reason to doubt his genuiness.
The strength of the children’s relationship with their father is positive proof of the mother’s commitment and ability to promote it. The children’s young ages at separation gave the mother considerable control over the nature and quality of the relationships the children would have with the father. Because of her primary carer role had she wanted to, the mother could have undermined the enormous investment the father made in his relationships with the children.
The only caution I have about the mother on this issue is her willingness to take steps for the children with which she disagrees. In a relationship sense, it would have been preferable for the parties to manage the separation in a more orderly fashion and to jointly decide when to return to Newcastle. The mother put her needs ahead of the rest of the family’s when she peremptorily removed the children from Perth and thus free and easy contact with their father was no longer possible. Her complaints to him in the children’s presence about his being 10 or 15 minutes late back with the children are inappropriate. Just as the father needs to make communication with the mother easier, she too needs to appreciate the potential impact upon the children’s relationship with their father of discussions of the type held in O’s presence about the father hitting the children. At their ages, these discussions send subtle messages which potentially detract from the children’s relationship with the father and his parental authority. If they continue, the impact will be greater and may ultimately support an argument the father may wish to make to change these orders so as to protect his relationship with the children. It is my expectation the mother will heed these observations and find a more appropriate manner to communicate with the father about the children but not in their presence.
Section 60CC(3)(d) is one of the important factors in these proceedings. There is a strong connection between this and s 60CC(3)(f). This subsection concerns the likely effect of any change in the children’s circumstances, including separation from parents or any other person with whom the children have been living.

The Family Consultant reported that the children were identified
[a]s needing consistency, safety and security in their environment. They are still dependent on their primary carer for meeting their physical and emotional needs. They need consistent and stable arrangements that assist them to meet their developmental tasks. They will be aware of conflict between their parents and may react behaviourally to this. [O] appears to be a child who requires a great deal of structure and stability in her life. She presents as a strong-willed child who does not cope well with change unless she is well prepared for it. The parents intend that [O] will attend school in 2010. Therefore changes to her living situation will need to be planned and introduced carefully taking into account her transition to school.
When discussing the parents’ capacity to meet the children’s emotional and psychological needs, the Family Consultant said:
The mother appears very capable of meeting the children’s emotional and psychological needs and the father raised no concerns in relation to this issue. The father presents as being very committed to the children. He also has a demanding job which places a considerable stress on him. By his own account when under stress he struggles at times, with [O’s] challenging behaviour.
Not only are these observations consistent with the Family Consultant’s investigations and information available to her but are also with the evidence. There is a nexus between the parties’ relationships with the children, their ages and stages of development, their capacity to meet the children’s emotional and psychological needs and the effect of changes in the children’s circumstances. The primacy of the children’s attachment to the mother, the importance of planned and orderly changes to their living arrangements and [O’s] challenging behaviours when these matters are out of alignment resulted in the Family Consultant’s recommendation:
[t]hat no change be made at present to the current regime. It is recommended that an additional overnight visit be added in October 2009. This will allow the father to be involved in the children’s preschool and from 2010 in [O’s] schooling.
In the long term the father proposed that he have slightly more time with the children than either the mother proposed or the Family Consultant recommended. Although the children would be better able to deal with the movement between their two homes which the father proposed, I am unable to do more than speculate about the children’s ability to emotionally adapt to the full extent of the changes which by 2013 the father’s application involved. It is noteworthy that the mother supported orders which ultimately result in the children spending more time with the father than the Family Consultant recommended. Concerning the duration of the block periods during school term which the children would ultimately spend with the father, the mother’s support for periods longer than recommended by the Family Consultant is particularly influential in my decision to move beyond the recommended periods. This is because the parties have shown that have been able to make a developmentally ambitious approach to the children’s separation from the mother succeed from the children’s perspective. Nonetheless the mother’s support for the children having the greater periods away from her as their primary career, commencing as the father suggested from 2013, takes the prospects that these arrangements are in the children’s best interests into the realm of speculation. To these findings I attach considerable weight.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child’s spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. The parties live approximately 45 minutes’ drive apart. For the time being, while the children are young, this means that the father needs to have the children back to the mother’s home by about 6:30pm so that they could be ready for bed by 7:00pm. If the mother collects the children from the father, as she presently does, this means she would need to collect them from him at about 6:00pm. As the children get older and their bedtime moves back the time they need to be back can be slightly later.
Both parties have drivers’ licences and reliable motor vehicles. The distance between their homes is unlikely to be so significant that it will impact upon the amount of time the children spend with the father.
As to the balance of the s 60CC(3)(f) matters there is no distinction between the parties’ capacity to provide for the children’s intellectual and physical needs. Each parent is capable of meeting these to the highest level.
There are no further s.60CC(3)(g) matters which require consideration.
Aboriginal and Torres Strait Islander issues do not arise.
Section 60CC(3)(i) concerns the parents’ attitudes towards their children and parental responsibility. Each party is wholly committed to promoting the children’s best interests. Each takes their responsibility as parents most seriously. There is nothing to which I was taken which would justify any qualification to these findings.
There is no family violence order or history of family violence.
Section 60CC(3)(l) requires that the court considers 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. As this litigation has continued the parents’ ability to communicate with each other has deteriorated and their distrust of each other increased. It is strongly likely this has occurred because the parties have each sought to gain perceived forensic advantage over the other and protect themselves from the same situation in reverse. If the slightly longer period of time that the father ultimately seeks commencing 2013 is ordered it is possible the arrangements for the children may fail because they lack the children’s support. Further litigation would almost certainly ensue. It is also possible that by the time the children are 8 and 6 years old, as the father now says they will, they do seek more time with him than the mother supports or the Family Consultant recommends. Whilst further litigation may follow it is more likely that the mother would agree to increase the father’s time with the children if this accords with their views. While I take these factors into account they warrant relatively modest weight.
There are no further factors which by virtue of section 60CC(3)(m) the court should consider.

Section 60CC(4) and Section 60CC(4)(a) considerations

There is considerable overlap between s 60CC(4), (4A) and s 60CC(3). The mother took issue with the father’s evidence concerning the extent to which he was involved in the children’s day to day care prior to separation. On this issue I preferred the father’s evidence. The mother appeared to struggle to recognise the heavy load which, prior to separation, the father carried. He worked full time, was away from home for lengthy periods and when he was at home he was actively involved in significant home renovations. If the mother expected more of the father, her expectations were unreasonable. The reality of the situation prior to separation was that without the father’s employment the mother would not have had the opportunity to stop paid work and devote her time to the family and children in the way she did.
I also reject the mother’s implied criticisms of the father’s failure to immediately follow her and the children from Perth. I was left with a sense of disquiet about the mother’s lack of insight into the reality of the father’s employment and the benefits which have flowed to her and the children because of it. The father has taken every opportunity to participate in making decisions about the children, spending time and communicating with them which his and the children’s circumstances have made available. He is to be commended not criticised for his approach.
It is unnecessary to restate fully the reasons why I am similarly satisfied that the mother has taken every opportunity to participate in major long term decision making and the children’s lives. Where she has resisted the father’s requests for additional time with the children, her opposition has usually been based upon her genuine beliefs that the amount of time he sought with the children was developmentally inappropriate. In some instances the mother conceded the father’s requests against her better judgment with the children ultimately acting out because of over-tiredness and too frequent changes to their routines. No criticism is made of either party for this and the mother in particular is to be commended for more often than not granting the father’s requests.
Earlier in these reasons I commented upon the mother’s preparedness to make major decisions about the children without adequately consulting the father. Her decision to relocate the children from Perth is one example. Another is her decision to enrol O in preschool and inform the father after she had done so. The mother’s affidavit evidence concerning her intentions to enrol O in school without any indication she would first meaningfully involve the father resonates with a style of decision making inconsistent with the mother’s obligation to involve the father in making decisions about major long-term issues.
So as to ensure problems do not arise in the future orders will be made which ensure that the parties consult one another and which provide for the passage of information which the parties need in order to decide these major long term issues. However I have decided against the generally overly prescriptive and somewhat pedantic approach reflected by the father’s proposed orders. I have sought to provide a balance between ensuring the parties adequately consult where necessary and forcing consultation and communication where it is unnecessary. The father’s proscriptve approach would more likely result in father disputation than the targeted but still flexible approach reflected in the orders.

Conclusion and structure of the orders

The parties agree they will have equal shared parental responsibility. They also agree that equal time orders are inappropriate and that the father should have substantial and significant time with the children. Because of the children’s ages the parties and Family Consultant agree that a staged approach to increasing the children’s time with the father is appropriate. For O this is a particularly sensitive issue as, of the two children, she finds coping with frequent changes to routine unsettling.
The importance of the children’s relationships with both parents and the children’s ages and stages of development are particularly influential factors. While the children are young they need to see the father regularly.
The mother would like to see Wednesday’s afternoons, which the children and parties refer to as “dinner dates” cease later this year. This would coincide with the children’s weekends with the father extending to Monday morning and twice monthly mid-week overnights changed from Wednesday to Tuesday. The father and children love their “dinner dates” which have featured as part of the children’s routine for at least twelve months. O’s occasional disinclination to attend is more than put into perspective by the mother’s evidence concerning the child’s delight in dressing for her “date” and skipping to the door when she hears the father arrive. Until the children are considerably older and better able to cope with longer periods without face to face contact with him these mid week visits will continue. The importance of these while the children are young is that they reinforce the father’s significant role in the children’s lives. The father is able to collect the children at 3.30 pm. For the remainder of this year neither child will have any other Wednesday commitments. O will be at school next year, which means the father will be able to collect her from school and reasonably frequently have the type of informal contact with teachers, other parents and a child’s school friends which enrich the parents appreciation of their child’s changing world. In this fashion the school communities’ awareness of the father is also enhanced. The advantages for the children are self evident. This approach also minimises the prospects of tension between the parties if, as has previously occurred, the father perceives that he is or he is sidelined.
The mother said it would be inappropriate for the father to take the children to his home for the “dinner date” afternoons. It is her belief that the approximately 45 minute drive each way mid week would be tiring for the children and disrupt their bedtime routine. However once again this is a question of degree. The children would travel each way by car, where in the unlikely event they are not talking and playing, they can sleep. The disruption and tiredness factor which troubled the mother at worst would have a small effect on the children which would be more than easily addressed by her permitting them to sleep slightly later the following morning. I do not accept that continuing this arrangement, even with a slight increase in duration, will have detrimental effects on the child’s well being or education. The reasons for increasing the duration of the Wednesday “dinner dates” is so that the father and children can have an adequate amount of time within which he can continue to enrich his time with the children with activities they enjoy. In 2013 the Wednesday evening periods will extend to 7.00 pm. By this time the children’s bed times will have changed and their routines should easily incorporate this slight increase. This slightly longer period will increase the father’s opportunity for involvement in the children’s homework, perhaps also their extra curricular activates. The point being that however he uses it the opportunity continues for the father’s active involvement in the children’s lives during the school week.
Mid week overnight periods will stop in 2013. This coincides with weekend time extending to four consecutive nights. Additional mid week overnights would potentially be too disruptive and as the evidence presently stands may involve the children spending more time away from the mother than they can emotionally accept. Similar considerations drive my decision against the father’s approach that at this stage the children have an additional night with him at weekends. History may prove this approach to be unduly cautious. If it transpires that this is so, if by 2013 the father is able to demonstrate that the children would be able to emotionally cope with longer periods away from the mother and that the evidence indicates this to be in their best interests, this issue could be considered again.
Because the father has and expects he will always only have four weeks recreation leave annually the parties agree he will have less than the commonly ordered half school holiday times with the children. Commencing 2010 the father will always have 16 consecutive days in January. When this arrangement is combined with his entitlement to spend time with the children over Christmas and block periods at the end of terms two and three, it is apparent the mother’s opportunity to have holidays away from home with the children of more than one week is very limited. It is appropriate that she also has a reasonable opportunity to take such holidays with the children. Her desire to so underpin the mother’s approach to the allocation of the children’s time at the end of term one. Each second year the mother will be able to suspend the children’s time with the father if she is holidaying away from home for the entire holidays. As end of term one usually coincides with Easter this means the father may miss out on spending part of this festive occasion with the children each second year. While he will be disappointed by this it is unlikely to have a discernable effect on the children. The father will be able to make up time forgone at a time of his choosing subject to the self explanatory conditions contained in the orders. While this will not assuage his disappointment it will ensure there is no adverse impact upon the children’s relationships with him.
The parties agree the father will create a family tradition whereby the children spend ANZAC Day with him. Limiting the start time to 9.00 am deprives the children of the opportunity to attend dawn services with him or perhaps the marches which take place in Sydney. For ANZAC Day to truly have the significance with which the father wishes to invest he and the children need to be able to have an early start. Thus this period will start the preceding afternoon. Occasionally ANZAC Day coincides with the end of term one school holidays. So as not to detract from the significant tradition this day is to have for the children and father the mother will be unable to suspend the father’s time even where this would clash with her holiday plans.
The mother’s approach to Mother’s and Father’s Day avoided the prospect that the children would face three consecutive weekends without seeing one of their parents. Although the amount of time is small it is preferable that the children at least have an opportunity to return to their routine on the Sunday of these weekends.
Although the parties agree special arrangements are needed for Christmas Day they were unable to agree on how these should be implemented. The difference is whether there should be change over on Christmas Day. The father is keen to spend time with the children every Christmas Day while the mother proposed that the children have that day with one family, alternating annually. There is merit in both parties’ positions. I have decided in favour of the father’s approach because the children are still young and are likely to delight in the opportunity to share the joy of their wonderful day with each of their parents and closest relatives.
The parties agree they will each be involved in the children’s orientation for school and attend their first days. Orders for this are thus unnecessary. Because the commencement of school is exciting but exhausting the parties agree there will be minor variations to the children’s routine. This way the children will be afforded the best opportunities to make a smooth transition to school.
The mother generally suggested that the children’s times with the father should start later than his proposed 3.30 pm. The father approach is preferred because, as discussed above, this incorporates him more fully into the children’s school communities.
As a general proposition it was agreed the parties would share the travelling involved in transporting the children between their two homes. It is agreed that consistency is maximised if the father collects the children from the mother’s home. However an issue which arises concerns Wednesday afternoons. So that the children return in time for bed, if the mother collects the children from the father his time will be shortened. If he returns the children there is no reduction to the period. As the father has control of his forward arrangements the return arrangements will be at his election.
The balance of the orders are self explanatory and do not require further discussion.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan.

Associate:

Date: 16 April 2009

[2009] FamCA 279

16 April 2009

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Areas of Law

Family Law

Legal Concepts

Consent