Liddell and Liddell

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIDDELL & LIDDELL

[2014] FCCA 2813

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 8 & 4 – nature of interim hearing – parties recently separated – parties agree presumption of equal shared parental responsibility should apply – parties have difficult parenting relationship – father seeks substantial and significant time, including consecutive overnight periods with the children pending preparation of family assessment report – mother asserts that children are anxious on prolonged separation from her – father asserts that mother intent on portraying him negatively to the children – matters to be considered – best interests.

Legislation:

Family Law Act 1975, ss:60CC; 61DA; 65DAA

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461]
Goode & Goode (2006) FLC 93-286
Godfrey v Saunders 2008 FLR 287

Applicant:

MS LIDDELL

Respondent:

MR LIDDELL

File Number:

ADC 1985 of 2014

Judgment of:

Judge Brown

Hearing date:

21 November 2014

Date of Last Submission:

21 November 2014

Delivered at:

Adelaide

Delivered on:

8 December 2014

REPRESENTATION

Counsel for the Applicant:

Ms Tinning

Solicitors for the Applicant:

Angela Ferdinandy

Counsel for the Respondent:

Ms Fuda

Solicitors for the Respondent:

Adelaide Family Law

ORDERS

The matter is fixed for final hearing before Judge Brown on 11 & 12 August 2015 at 10:00am NOTING 2 days allowed.
Further consideration of this matter is adjourned to 30 March 2015 at 9:30am.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties and released on or before 6 March 2015.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2006 and Y born (omitted) 2010.
Orders 8, 9 and 10 of the orders of 2 September 2014 continue.
The children live with the mother.
The father spend time with the children as follows:
(a)During school terms:
(i)Each Wednesday from 5:30pm until the following Thursday at 8:30am;
(ii)On alternate weekends from 9.30am on Saturday until 4:00pm the following Sunday commencing 6 December 2014 with the regime to recommence on the first Saturday following the conclusion of the 2014/2015 school holidays.
(b)During the end of year school holidays in 2014/2015, subject to the arrangements for Christmas hereunder:
(i)In the week one of the holiday and each alternate week thereafter from 9:00am Friday until 4:00pm the following Saturday; and
(ii)In week two of the school holiday and each alternate week thereafter from 9:00am Tuesday until 4:00pm the following Wednesday and from 9:00am Saturday until 4:00pm the following Sunday.
The children spend from 2:00pm on 24 December 2014 until 2:00pm on 25 December 2014 with the mother and from 2:00pm on 25 December 2014 until 2:00pm on 26 December 2014 with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1985 of 2014

MS LIDDELL

Applicant

And

MR LIDDELL

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Liddell and Mr Liddell. They are in dispute about interim arrangements for the care of their two children – X born (omitted) 2006 and Y born (omitted) 2010, particularly the extent of time which the children should spend with their father during both school holidays and term time.
The parties are each aged forty-two. Both are (occupation omitted) by profession. They have been significantly involved, with one another, over many years. They married on (omitted) 2003 and separated recently on 19 May 2014.
When the parties separated, the mother and two children remained living in the parties’ former family home situated at (omitted), whilst the father moved into rented accommodation in (omitted). It appears probable that the parties’ separation inaugurated a period of financial privation for each of them.
The mother commenced these proceedings on 4 June 2014. In addition to orders in respect of the children, she sought orders in respect of the division of matrimonial property.
Initially, the mother proposed that the parties should share parental responsibility for X and Y and the children should live predominantly with her. She proposed that the children should spend time with their father on alternate weekends from the conclusion of school Friday to 4:00pm the following Sunday. Her application was silent in respect of specific arrangements for school holidays.
The father responded to this application on 29 August 2014. He agreed that the parties should share parental responsibility for the children. However, it is his position that there should be an equal time arrangement for the children, at both an interim and final stage.
Both parties were born in the (country omitted), but migrated to Australia in 1998. At this stage, they were in a de facto relationship and came to Australia as a couple, as a consequence of employment opportunities offered to the father in this country. They later returned to the (country omitted) between 2001 and 2005, but returned permanently to Adelaide in 2005. Both now hold dual Australian/ (country omitted) citizenship.
In these circumstances, orders have been made restraining the parties from removing X and Y from Australia and placing the names of the children on the airport watch list. This aspect of the case is not currently controversial and, as I understand matters, neither party has any proposal to travel overseas in the near to medium future.
The matter first came to court on 2 September 2014. On this occasion, as well as the airport watch order, directions were made referring the matter to a financial mediation conference. Orders were also made in respect of X and Y.
It was agreed that the parties should have equal shared parental responsibility for the children and each should be restrained from discussing the court case with the children or denigrating the other parent in the presence or hearing of the children.
In addition, it was ordered that the children should live with the father for blocks of five days during school holidays and on alternate weekends during school terms, as well as on each Wednesday.
In her original affidavit, the mother had deposed as follows:
“The husband and I had agreed that the children would live with me, and that the husband would spend time with the children every Wednesday from approximately 5:30pm until the commencement of school and kindergarten on the next day. In addition to this we agreed on or about 20 May 2014 that the husband on a trial basis of four (4) weeks would spend alternating Saturdays and Sundays with the children. If the husband was to have the children Saturday he was to return them to me at tennis on Sunday at 9:00am. If the husband was to have the children on Sunday he was to take them to childcare and school Monday.”[1]
[1] See wife’s affidavit filed 4 June 2014
It was the mother’s position that the father worked long hours, in his position as a (occupation omitted). In contrast, she deposed that she had taken on part-time work, which was tailored around the children’s attendance at either pre-school or school.
In these circumstances, it was her position that she had been the predominant carer of the children, particularly in respect of satisfying their day to day physical needs, for the vast majority, if not all of their lives, up to this point.
Ms Liddell conceded however that the father had been involved with the children on weekends and had regularly taken them to swimming lesson and to sporting activities. It is the clear underpinning of her case that she is to be regarded as the children’s primary source of emotional security. She asserts that X and Y have been unsettled by the parties’ separation.
In his affidavit material, Mr Liddell painted a different picture in respect of prior arrangements for the care of the children. It was his assertion that the mother had struggled with the pressures of parenting, from time to time. He described her as a parent who often lost her cool and who was very reliant upon him for help with the children.
In these circumstances, he categorised himself as being very much a hands on parent, who frequently prepared breakfasts and school lunches for the children, as well as regularly doing the school run for them. It was also his position that he regularly bathed and showered the children, both during the week and at weekends.
In his initial affidavit, Mr Liddell deposed as follows:
“… on 18 May 2014 I sought 50% care of the children and Ms Liddell advised me that she thought it best to work gradually towards this arrangement so as to allow the children time to adjust. I agreed to have the children in my care on an interim basis each Wednesday night and each alternate Saturday or Sunday but thought that this would only be for an initial period of four weeks and then after that, time we would move to a routine of three nights per week with me for the balance of 2014. It was then envisaged that we would move to a shared care arrangement as and from January 2015 to allow time for Ms Liddell to adjust.”[2]
[2] See husband’s affidavit filed 29 August 2014
Accordingly, it is Mr Liddell’s position that there is an historical basis to support his application for an equal time arrangement for the two children. It is also his position that Ms Liddell agreed to this arrangement coming into existence. However, it is his perception that the mother has reneged on this agreement and now is working to reduce his time with the children for reasons which are unclear to him but perhaps relate to her own emotional insecurity rather than the best interests of the two children concerned.
In her affidavit material, Ms Liddell has also alleged that Mr Liddell has issues to do with the over consumption of alcohol. For his part, whilst acknowledging that he does drink wine from time to time, the father resolutely refutes this allegation. In his answering material, Mr Liddell in fact alleges that the mother has difficulties controlling her temper and has, in the past, engaged in unwarranted emotional outbursts against him.
At this stage, I am not in a position to resolve these factual issues between the parties. What is clear to me however is that the parties’ separation was a difficult one, which precipitated strong emotions in each of them. Notwithstanding the best efforts of the parents, it is difficult to see how X and Y could have been completely quarantined from this unhappy situation.
In recognition of the fairly recent separation of the parties and in order to assist them to reach a consensual arrangement in respect of the future parenting of X and Y, the parties were referred to a child dispute conference with Family Consultant Ms K, on 22 October 2014.
Regrettably, this intervention did not assist the parties to reach either a provisional or final arrangement for the care of the two children concerned. Rather, it seems to have served to widen the breach between them.
As a consequence of her perception that the orders of 2 September 2014 are not working, on 19 November 2014, the mother has filed an amended application, in which she has set out fresh proposals for the father to spend time with X and Y.
It is clear that Ms Liddell is adamantly opposed to anything approaching a shared care arrangement. It is her position that the earlier orders were too much and too soon and, as such, she proposed a scaling back.
From the father’s perspective, although he concedes that five consecutive days, during school holidays, may be a little too much for Y, in particular, to manage, the orders currently made have been working more or less successfully. As such, he opposes any reduction in his time with the children and fears that the mother is intent on marginalising him, so far as the children are concerned.
I have been advised that, to their mutual credit, the parties have been able to resolve the financial issues between them. The parties also agree that there should be an independent and thorough examination of the psychological needs of the children and their level of relationship with each of their parents.
From the mother’s perspective, it would be preferable that such a report be prepared by an expert within the court, whilst the father’s preference is for the parties to commission and pay for their own expert report.
Whilst the parties are to be commended for resolving the property aspects of the case, it is my impression that the aspect of the case pertaining to arrangements for the care of X and Y is becoming more polarised and fraught with more rather than less difficulty.
Essentially, the mother asserts that the children are becoming more and more emotionally needy and it is obvious that this is because they are not coping with the current regime. She asserts that the children are particularly unsettled, when they return from spending time with their father, whom she would categorise as a person lacking insight into the emotional needs of the children. She believes Mr Liddell is fixated on achieving what he believes are his entitlements to have a shared care regime for the children, rather than on what is best for X and Y.
On the other hand, the father wishes to maintain a constant presence in the children’s lives and fears that it will be emotionally unsettling for them, if he flips in and out of their lives for what he regards as being the brief periods of time advocated by Ms Liddell.
He fears that the mother is either actively or unconsciously conditioning the children against him, in order to defeat the best parenting outcome for the children, which is to spend as much time as possible with each of their parents. At this stage, he asserts that X has clearly indicated to him that he (X) wishes to spend more time with his father.
At this stage, the mother seeks the following orders:
“That the children spend time with the husband:
A) Week 1
From the conclusion of school on Tuesday (or 3.25pm if a non-school day) to 6:30pm; and
From the conclusion of school on Thursday (or 3.25pm if a non-school day) to the commencement of school Friday (or 8.30am if a non-school)
B) Week 2
From the conclusion of school of Tuesday (or 3.25pm if a non-school day) to 8:30am (or the commencement of school) on Wednesday;
From the conclusion of school of Thursday (or 3.25pm if a non-school day) to 6:30pm; and
From 8:30am Saturday to 12 noon Sunday.”
Again, her application is silent in respect of arrangements for school holidays. However, her counsel, Ms Tinning has proposed that, during the forthcoming end of year school holiday, the children should spend time with their father in a rotating fortnightly regime, which would see them spending from 9:00am Friday to 4:00pm Saturday in the first week of the fortnight; and from 9:00am Tuesday until 4:00pm Wednesday, and from 9:00am Saturday until 4:00pm Sunday, in the following week of each fortnight.
The father has not, as yet, formally amended his response. However, he opposes what he would categorise as a dramatic reduction of his time with the children. He would want to spend time with the children, during the next school holiday period, for regular blocks of time of up to three days in duration.
It his evidence that his current accommodation is comfortable and secure for the children. He is concerned that substituting a few hours, on a week night, for an over-night stay with the children, would be deeply unsettling for X and Y. He also thinks that it is preferable that the number of handovers be reduced.[3]
[3] See father’s affidavit filed 19 November 2014 at paragraph 27
The parties are in agreement about what should happen on the festive days of the forthcoming Christmas holiday. It is agreed that the children should spend from 2.00 pm on 24 December until 2.00 pm on 25 December with their mother and from 2.00 pm on 25 December until 2.00 pm on 26 December with their father.

The nature of an interim hearing

This is an interim hearing. It takes place in a shortened form. The evidence from each of the parties concerned, I suspect, has been quickly prepared and is quite possibly incomplete. Importantly, at this stage, there has been insufficient time for the parties to be cross-examined.
It is through cross-examination that a person placed in my position, discharging a judicial function, is able to make findings regarding the credit or honesty of the parties concerned and consider the actions which have motivated them in the case to date. In the absence of such cross-examination, at this interim stage, I cannot resolve factual issues in dispute between them.
In this case there are many factual issues in dispute, the chief of which is the level of relationship each of the parties has with the X and Y and how the children are coping with the current parenting regime.
Regrettably, as in many hard fought cases, which occur against a background of urgency and controversy, each party has concentrated, in their respective affidavit material, on what they perceive to be the negative aspects of the other’s behaviour and personality.
As a consequence, neither party has anything of a particularly positive note to say about the other. At this stage, in this context, it is difficult if not impossible for me to determine the rights and wrongs of the parties’ circumstances, which seem to have led to a difficult and acrimonious separation between them.
In a fairly short period of time, the mother has filed three affidavits and the father two. Each categorically denies significant portions of the others affidavit material. This is testament to the level of heat in the proceedings, which cannot be helpful to either X or Y.
At the heart of the dispute, the court is being asked to determine how the time the children spend, with each of their parents, should be precisely allocated. In this context, with the upmost respect, the parties would be well served to consider the following question, given the antagonisms between them, “will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”[4]
[4] See: McIntosh & Chisholm Shared Care and Children’s Best Interests in Conflicted Separation: A cautionary tale from current research (2008) 20(1) Australian Family Lawyer 3 at page 14
From my point of view, I accept that both Mr Liddell and Ms Liddell are loving and well-motivated parents, who fervently want the best for X and Y. I have also no reason to think that they are anything other than genuine and honest in the respective views they have professed as to what is likely to be best for their children.
However, they are also individuals who are passing through one of the most emotionally wrenching experience, which can befall a person in this day and age – their separation. Such a situation is not likely to be calculated to assist them to reach common ground or empathise with the position or aspirations of the other or even to be able to evaluate the other’s proposals objectively. In these circumstances, an independent assessment of the children is likely to be crucial to determine what the best outcome is for them.

However, as the parties are well aware, at this interim stage, I do not have access to any such independent and expert assessment of the needs of the children themselves, in the form of a family report. In cases involving arrangements for children, particularly when the positions of their parents are conflicted and hostile, such family reports play a crucial role in the determination of such cases.

The legal principles applicable

Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage. They are contained in Part VII of the Family Law Act 1975, which is the part of the Act dealing with children.
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[5]
[5] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7]
[6] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[7] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]
[8] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
In the case of Goode & Goode[9], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[9] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Neither counsel for the mother nor counsel for the father alluded specifically to the legal framework in which the decision relating to X and Y must be made, although each parent wishes the presumption of equal shared parental responsibility to be applied.
It would appear to be the father’s position that, when the court considers all the evidence available, it will conclude that it is likely to be both in the children’s best interests and reasonably practicable for them to spend substantial and significant time with him.
On the other hand, underpinning the mother’s case is the assumption that such an outcome would not be in X and Y’s best interests and the relationship between her and Mr Liddell is too fraught with difficulties and conflict to make it a feasible arrangement.

Further issues

The mother asserts that Y is clingy and emotionally needy, when she returns from spending time with her father. In this respect she points to one specific incident, which on her case, demonstrates that the father has a flawed understanding of what it is to be a responsible parent.
In mid-October the children spent the weekend with their father. During this period he arranged for a female friend to spend the night at his home. The children were aware of this and, on the mother’s case, were directed by the father to conceal the fact from her, which caused both Y and X a significant deal of emotional angst.
From Ms Liddell’s perspective this behaviour is emblematic of the father’s insensitive attitude to the children’s feelings. Mr Liddell concedes that he did initially tell the children not to tell their mother about the incident but later told them not to lie about it to their mother. It is his evidence that he also indicated to the children that he would prefer them not to disclose the matter to their mother as he feared it would only increase the tensions between the parents.
The mother’s case is that both children have been significantly upset by the incident, particularly X, who is reported to be no-longer a happy and chatty child. From the father’s perspective, the incident has been over-emphasised and he believes that both children have largely forgotten it.
Accordingly, at present, the parties have every different views as to how the children are faring in an emotional sense. The mother alleges that Y follows her around and both children do not like to be left alone. X has been behaving in an aggressive manner and has had an increase in bedwetting. She ties this behaviour to overnight periods between the children and their father.
The father responds to these matters by asserting that he, for obvious reasons, cannot comment on how the children present when they are with their mother, but when with him both children appear happy and contented. He is concerned that, if the children are unhappy, it is because the mother is undermining him to X and Y, a circumstance, which they find distressing.
It is his position that X has told him that he wants to spend more time with his father and is vocalising his sadness at missing his father. In this context he has provided the court with several happy photographs showing him and the children happily engaged in a number of activities such as eating ice creams and playing mini golf.
Pursuant to the provisions of section 11F of the Family Law Act, the court is authorised to require the parties to a case before it to attend upon a family consultant. One of the functions of a family consultant is to assist both the court and the parties themselves in relation to the relevant proceedings before the court.
The parties, in this case, were referred to Family Consultant Ms K, to this end. Under the heading Future Directions she reported as follows:
“It is noted that the separation is relatively new for the children and the parents, and it is likely that all members of the family are feeling emotionally vulnerable and fragile at this time. Short but frequent time with the father may assist the children to keep the connection with the father, and it may be difficult for them to adjust to several consecutive overnight times given the changes they have experiences in their lives. Ms Liddell’s proposal for dinner times with the father may have some merit, and if the parties cannot agree about the best overnight arrangements, one night might be best in the Interim, and a Family Assessment, in due course, might assist to resolve the dispute.”
The mother has structured her current proposal around these recommendations. In response, the father asserts that the Family Consultant did not give him a great deal of time and apparently accepted everything said by Ms Liddell. As such, he does not believe her recommendations are particularly helpful.

Conclusions

This is a difficult and confusing matter, given the currently polarised positions of the parties. It is a particularly difficult matter for the court to determine in the absence of a more thorough and independent assessment of the emotional and psychological needs of the two children concerned.
The parties are each professionally qualified, although the father has left his previous employment and is currently looking for a position. The mother discloses a weekly income of around $1,900.00; the father supports himself through income received from investments. In these circumstances, in my view, it is appropriate that the parties fund their own private family assessment report, to be completed by an expert of their mutual selection.
I anticipate such a report will take around three or four months to be completed. In these circumstances, I will allocate the matter for a two day final hearing on 11 & 12 August 2015.
In terms of the primary considerations, arising under section 60CC(2), it does not appear to be a case focussed on protective concerns regarding X and Y. There is no suggestion that either child has ever been subject to any form of abuse, neglect or family violence.
In my assessment, both children are loved and cherished by their parents, who each have much to offer them, both now and in the future. However, it is also clear to me that the currently highly conflicted parenting relationship between the parties has at least the potential to be emotionally detrimental to the children.
Ms K rightly points out that the separation between the parties remains relatively recent and, as such, all concerned, including X and Y, are likely to be struggling to come to terms with it. It is to be hoped that all concerned will make the necessary adjustment to come to terms with their new circumstances as a separated family.
However, the absence of concerns regarding family violence, neglect and abuse mandates the court to give close consideration to the benefits X and Y are likely to derive from having a meaningful level of relationship with each of their parents.
From the father’s perspective, given that he shared a household with the children until the parties’ separation in May of this year, this requires the children to spend relatively lengthy periods of time with him, including consecutive overnight periods.
Otherwise he asserts that the relationship between him and X and Y will not be a meaningful one. Rather it will be artificially constrained because he will merely flip into the children’s lives for what he regards as inadequate periods of time.
Ms Liddell’s apparent focus is on how she sees the children currently coping in an emotional sense. She describes unhappy and conflicted children, who are struggling with their current circumstances. As such, she urges caution and restraint on the court’s part.
In contrast, Mr Liddell portrays Ms Liddell as a parent who wishes to negate his influence in the children’s lives to satisfy her own emotional needs. Regardless of where the truth lies, in my assessment, the current situation can hardly be one described as being conducive to a shared care regime for the children, either now or in the future.
The rationale of the amended provisions of Part VII of the Family Law Act 1975 is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[10]
[10] Goode & Goode (2006) FLC 93-286 at 80,901
However, as As Kay J pointed out in Godfrey v Saunders[11] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In this context, I must be careful not to determine the case, particularly at this interim stage, in the artificial framework of considerations of what is theoretically ideal for the children. Rather I must consider the current reality of their family situation, particularly the emotional topography prevailing between their parents.
[11] See Godfrey v Saunders 2008 FLR 287 at 298

On any view, the parenting relationship between the parties is currently extremely strained and mistrustful. The parties do not communicate well and have a fundamentally different view as to how X and Y are currently travelling in an emotional sense. Some of these issues may be clarified by a family assessment report but until such a report is to hand, in my view, it is incumbent upon the court to approach the case somewhat cautiously rather than in an experimental fashion.
Notwithstanding the tensions between them, both the father and mother advocate the application of the presumption of equal parental responsibility. However that presumption does not alone dictate the extent of time a parent should spend with a child. In a case, such as this one, which concerns two well-motivated and interested parents, it is evident that both Mr Liddell and Ms Liddell wish to be involved in every aspect of major decision making concerning X and Y.
MRR, to which reference has already been made, indicates that the presumption of equal shared parental responsibility is not of itself determinative of whether there should be either an equal time or substantial and significant time regime. The outcome is dependent on the application of the considerations specifically arising under section 65DAA.
Both such outcomes (equal time and substantial time) require an affirmative answer to be reached to both the questions arising in section 65DAA namely firstly will these outcomes be in the best interests of any child concerned and secondly are the outcomes objectively feasible to put in place, in all the circumstances of the case.
Essentially, the court must be careful not to be blinded by issues relating only to the best interests of the child concerned and ignore or overlook the second limb of section 65DAA. At this stage, the evidence indicates that the parties do not communicate well and have little capacity to resolve any parenting difficulties arising between them. On the mother’s case, the current regime is also deleteriously impacting upon the children. A fact which Mr Liddell refutes.
In all these circumstances, I do not consider that either an equal time or substantial and significant time regime is logistically feasible to implement at this stage. However, that does not absolve the court of responsibility to consider the benefits X and Y are likely to derive from having a meaningful level of relationship with their father.
In this context, I accept that Mr Liddell loves both children. It also seems to be the case that he is capable of discharging the responsibilities incumbent on being a parent. The children will be properly cared for whilst in his care [see section 60CC(3)(i)].
The views and preferences of the children are unclear [see section 60CC(3)(a)]. In any event, at just over seven years and four and a half years respectively, the children’s views, even if determinable, cannot be decisive.
I am satisfied that both children have a close relationship with each parent and indeed with each other [see section 60CC(3)(b)]. As such, it is appropriate that the same arrangements be made for both X and Y.
However, on balance, it seems more likely than not that the children’s most significant relationship is with their mother. To his credit, Mr Liddell gives tacit acknowledgement of this fact by his recognition that the children are likely to struggle if separated from their mother for periods in excess of three days.
In this context, the ages of the children and the likely impact upon them of any degree of change, particularly in terms of being separated from a parent, are likely to be significant considerations [see section 60CC(3)(d) & (g)].
Y is a little girl. As such, she may struggle at being separated from her primary carer for more than one or two days, particularly if she perceives that her parents are in significant conflict with one another. X is older but still not yet eight years of age. At this stage, I am not in a position to reject Ms Liddell’s evidence of bedwetting and aggressive out of character behaviour on his part.
In practical terms, there are few impediments to Mr Liddell spending the periods of time which he proposes with X and Y. His home is at (omitted), which is a manageable distance from the mother’s residence in (omitted) [see section 60CC(3)(e)]. Both parties have motor vehicles. The central issue in this case is not the logistics alone but rather the psychological workability of the regime advocated by the father, given the issues arising in the parties’ relationship following their separation.
I accept that both parties aspire to being the best possible parents that they can be [see section 60CC(3)(f) & (i)]. In this context, Mr Liddell is not to be criticised for wanting to spend as much time as possible with X and Y. Nor are the parties to be criticised for their current inability to reach a consensus about what is likely to be best for their children.
The issue of Mr Liddell’s friend staying over, whilst the children were overnighting with him could, with the benefit of hindsight, have been better handled. For obvious reasons, such a matter has the potential to be emotionally labile for all concerned. At first blush, it was not insightful for Mr Liddell to ask the children to conceal the issue from their mother. This action, apparently soon abandoned, can only have intensified the emotional pressure on the children.
The parties are now separated. The circumstances of their separation seem to have been challenging for each of them. Accordingly, it is hardly surprising that they find it difficult to reach agreement about arrangements for their children. This does not mean that either is to be regarded as a failed parent or to be an unreasonable person per se.
Having attempted, I hope to consider carefully all relevant additional considerations, I have come to the conclusion that, pending the availability of further evidence in the form of a family assessment report, I should take a gradual and cautious approach to this matter.
This approach will be characterised by the children continuing to live predominantly with their mother but spending relatively confined periods of time with their father, during both school terms and school holidays, which will include regular overnight stays.
I am not persuaded that it would be helpful to restrict much of the father’s time with the children to touch base meal time interactions, as I think there is some substance to the father’s view that such a regime would heighten rather than lessen the tensions between the parties. These tensions seem to be unacceptably high at the present time.
In the short to medium term the intention is to maintain a meaningful level of relationship between X, Y and their father but also ensure that the children have a sense of emotional equilibrium, in the sense that they will return to their mother’s predominant care after one night in the main.
In this context, I have decided to continue the overnight visit on each Wednesday, during school terms and the alternate weekend regime from Saturday morning until Sunday afternoon. Accordingly, each fortnight there will be three overnight stays. I am satisfied that this is appropriate for X, given his age. The issue is more problematic for Y, but she will have the support of her brother and the overnight periods are broken up.
I will put in place a similar regime during the school holidays, which will see the children spending three overnight periods, each fortnight with their father, as the mother proposes. In my view, this arrangement is workable given the father is not currently in paid employment. The matter will return to court prior to Easter and the end of term one holiday. It is intended to be a holding pattern pending the family assessment report.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 8 December 2014

[2014] FCCA 2813

8 December 2014

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