Liepins and Liepins
[2008] FMCAfam 85
•11 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIEPINS & LIEPINS | [2008] FMCAfam 85 |
| FAMILY LAW – Children aged 9 & 7 – final arrangements for care – parents agree that presumption of equal shared parental responsibility applies and that children should live with each of them for equal periods of time – resolution of disputes between regarding division of school holiday periods – dispute regarding major long term issue regarding children’s cultural upbringing – parties unable to resolve whether children should attend Latvian School whilst in mother’s care – parallel parenting. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65DAE |
| H & H (2003) Fam LR 264 |
| Applicant: | MS LIEPINS |
| Respondent: | DR LIEPINS |
| File Number: | ADC 408 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 5 February 2008 |
| Date of Last Submission: | 5 February 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 11 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | David Whittle |
| Solicitors for the Applicant: | Cardone & Associates |
| Counsel for the Respondent: | David Berman |
| Solicitors for the Respondent: | Wallman Lawyers |
ORDERS
The husband and the wife have equal shared parental responsibility for the children [O] born in 1999 and [H] born in 2000 “the children”.
The children live with each of their parents as follows:
2.1During school terms, continuing from the conclusion of the fourth school term until 8 a.m. on 19 December in each year:
2.1.1With the husband from the commencement of school on Monday until the commencement of school on the following Wednesday;
2.1.2With the wife from the commencement of school on Wednesday until the commencement of school on the following Friday;
2.1.3With the husband during each alternate weekend from the commencement of school on Friday until the commencement of school on the following Monday, commencing at the beginning of each term as follows:
2.1.3.1In the first term, on the first Friday of term if the children were living with the wife on the last full weekend prior to 19 December in the previous year or on the second Friday of term if the children were living with the husband on the last full weekend prior to 19 December in the previous year;
2.1.3.2In the second, third and fourth terms, on the first Friday of term if the children were living with or to live with the wife pursuant to this subparagraph (disregarding any variation at Easter) on the last weekend of the previous school term and on the second Friday of term if the children were living with or to live with the husband pursuant to this subparagraph (disregarding any variation at Easter) on the last weekend of the previous school term;
2.1.4With the wife during each intervening weekend from the commencement of school on Friday until the commencement of school on the following Monday;
2.1.5If any handover is to occur on a pupil free day, public holiday or school holiday, then such handover shall occur at 8:00am on that day.
2.2During school holidays at the conclusion of the first, second and third school terms, subject to paragraph 2.5
2.2.1With the wife for the first half, from the conclusion of school on the last day of term until 5:00pm on the middle Saturday;
2.2.2With the husband for the second half, from 5:00pm on the middle Saturday until the commencement of the following school term;
PROVIDED that if Easter falls on the first weekend of the holidays the children shall continue to live with the parent with whom they spend Easter pursuant to paragraph 2.5, until 5:00pm on the Friday following Easter, and live with the other parent until the commencement of the following school term and if the mid year end of second term holiday is three weeks in duration the parties respective halves will commence and conclude at 8:00am on the middle Wednesday.
2.3During school holidays at the conclusion of the second school term in 2008 only from the commencement of school on Wednesday 25 June 2008 until 5:00pm on Thursday 24 July 2008 in order that the children may travel overseas with the husband PROVIDED that the husband gives to the wife at least three months prior written notice and a copy of the intended itinerary pertaining to the overseas holiday and the wife shall execute and return to the husband in a timely manner any document required and tendered to her to enable the children to travel overseas including any application for a passport and/or visa in the name of each child.
2.4In order to make up for time with the children lost to her pursuant to the operation of order 2.3 hereof the children will spend time with the wife for the whole of the end of term 3 school holiday in 2008 and for the weekend of 20 June 2008 to 23 June 2008 and from 8:00am on 28 July 2008 until 8:00am on 30 July 2008.
2.5At Easter, on the basis that this order shall prevail over paragraph 2.2 when Easter falls on the first weekend of the school holidays:
2.5.1From the conclusion of school on the Thursday prior to Easter until the commencement of school on the Tuesday immediately following Easter:
2.5.1.1with the wife in 2009 and each alternate year thereafter;
2.5.1.2with the husband in 2008 and each alternate year thereafter;
PROVIDED that if Easter falls on the second weekend of the school holidays paragraphs 2.2.1 and 2.2.2 of this order shall prevail.
2.6During Christmas and Christmas/New Year school holidays:
2.6.1From the conclusion of the school term until 19 December the arrangements set out in 2.1.1 to 2.1.5 herein apply.
2.6.2With the husband from 8:00am on 19 December until 11:00am on 25 December each year;
2.6.3With the wife from 11:00am on 25 December until 8:00am on 31 December each year;
2.6.4With the husband from 8:00am 31st December until 8:00am 14th January;
2.6.5With the wife from 8:00am on 14 January until 8:00am on 28 January;
2.6.6With the husband and the wife respectively, for an equal portion of the period from 28 January until the commencement of school at times to be agreed or ordered by the Court.
2.7On Father’s Day and Mother’s Day as follows:
2.7.1With the husband from 5:00pm on the day before Father's Day until 5:00pm on Father's Day;
2.7.2With the wife from 5:00pm on the day before Mother's Day until 5:00pm on Mother's Day;
2.8For the Latvian Midsummer Festival ("Jani") with the husband each year for one day from 8:00am on the first day until 8:00am on the second day provided that in the event such period falls during a time when the children are otherwise living with the wife, that the children then live with the wife for 24 hours by way of makeup time, at a time to be agreed between the parties;
2.9As further or otherwise agreed between the parties or ordered by the Court including for overseas trips or other extended holidays proposed by either party from time to time.
That handovers not occurring at the children's school be effected by each parent delivering the children to the home of the other at the conclusion of the children's time with that parent.
IT IS NOTED that publication of this judgment under the pseudonym Liepins & Liepins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 408 of 2007
| MS LIEPINS |
Applicant
And
| DR LIEPINS |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Liepins “the mother” and Dr Liepins “the father” are the parents of [O] born in 1999 and [H] born in 2000.
The parties married in July of 1997 and separated in early 2005. Shortly afterwards, they agreed that they would parent their children in what is commonly known as a shared care arrangement. Essentially, they agreed the children would spend equal periods of time in each of their respective households.
This arrangement has never been formally ratified by court order and, from both parties’ perspective, the arrangement has not been without its difficulties. However they each remain committed to the ideal that their children’s emotional and personal development will be enhanced if [O] and [H] grow up with the sense that both their parents are fully and equally involved in their lives. Such an aspiration is consistent with the ethos of the Family Law Act1975, the legislation I must apply in resolving the various disputes between the parties.
The father is a [occupation omitted]. The mother is a [occupation omitted]. They are both intelligent and caring parents, who are well resourced financially. There is no doubt that both are capable of parenting the children to a very high degree. As a result, [O] and [H] are much loved and well cared for children, who live rich and rewarding lives.
In the early part of 2007, the parties commenced proceedings to bring about a final division of their matrimonial property. Recently, they have been able to reach agreement about the property aspects of the case. Associated with the property applications, each party brought proceedings in respect of final parenting arrangements for [O] and [H].
The essentials of their 2005 informal agreement remain agreed between them. [O] and [H] will continue to live with each of their parents, for equal periods of time according to the following regime.
During school terms, the children will live with their father nominally from the start of school on Monday until the commencement of school the following Wednesday; and with their mother from the commencement of school on Wednesday until the commencement of school the following Friday.
The children’s care on weekends, during school terms, is to be alternated between the parents, with a formula to determine who of them will have the children on the first weekend of each school term and thereafter in turn.
The parties have also agreed that the children should spend equal periods of time, with each of their parents, during school holidays. However, the precise mechanisms, whereby this equality of time is to be achieved, in holidays, is in dispute between them.
There are other areas of dispute between the parties. The father wishes to pursue plans to holiday overseas, with the children, in June and July of 2008. In addition, he wishes orders to be made that will ensure he is able to take a week’s skiing holiday, with the children, in Mt Buller in 2009 and each year thereafter. The proposed holiday is to coincide with SA Schools Snow Week, which is always held at Mt Buller.
The mother has no opposition to skiing, in itself, for the children nor does she dispute the benefits for them of overseas travel. Her concern is at the potential imposition of these activities, on the time she would otherwise be scheduled to spend with the children. It would be her preference that the father confines the activities, which he wishes to pursue with the children, to his specific weekends or halves of the holidays he spends with the children.
Importantly, in the legal context of the dispute between them, the parties have agreed that they will have equal shared parental responsibility for [O] and [H] [Family Law Act section 61DA][1].
[1] Hereinafter each reference in [] is a reference to the Family Law Act 1975
Having agreed on this arrangement, in respect of parental responsibility for their children, the legislative framework applicable requires the parties to make decisions regarding major long term issues in respect of [O] and [H] jointly [section 65DAC(2)].
The onus on them being to consult with one another and make a genuine effort to come to a joint decision about such major long term issues pertaining to their children [section 65DAC(3)].
Major long term issues, in respect of children, include issues related to their long term care, welfare and development and specifically includes matters to do with their:
·education;
·religious and cultural upbringing;
·health;
·names;
·changes to their living arrangements, which are likely to make it significantly more difficult for the children to spend time with one or other of their parents [section 4].
In the context of this case, issues to do with the children’s cultural upbringing and orientation are particularly controversial between the parties.
The father is Latvian by background. His parents and both his paternal and maternal grandparents are Latvian. He himself speaks Latvian. He wishes the children concerned to have the same fluency in Latvian and familiarity and understanding of Latvian culture as he does.
To this end, Dr Liepins wishes the children to attend Latvian School each week during school terms. In the primary school years, in Adelaide, Latvian School takes place on Saturday mornings. In secondary school years, it takes place on Tuesday evenings.
Obviously, if the children attend Latvian school on weekends, this will impinge upon the time the children would otherwise spend with their mother. Ms Liepins is not prepared to agree to any order that would require her to take the children to Latvian School, when they are in her care.
She acknowledges the children’s Latvian heritage, something which she does not personally share. However, from her perspective, it is appropriate that the father should be responsible for developing the Latvian aspects of the children’s cultural orientation, during the periods when they are in his care.
These periods will be extensive. In such circumstances, she believes the father’s views about the importance of the children attending Latvian School and associated Latvian cultural events and performances should be the father’s sole domain and should not encroach upon her time with the children. Essentially she believes she should be free to pursue whatever cultural or other interests she has with the children in her time.
Although the parties are committed to the children spending equal periods of time with each of them, they do not have an easy relationship with one another and do not communicate well. Their circumstances require that the division of the children’s times with each of them, should be able to be determined, in advance, in accordance with a precise and readily ascertainable formula.
The parties acknowledge that their relationship is not one which is amenable to fluid or ad hoc arrangements. In the absence of clear directions about arrangements for the children, there will always be the potential for disputes to arise between them about interpretation, which they themselves will find it difficult to resolve.
It is implicit in the positions of each of the parties that they acknowledge that the other has much to offer the children. That is not to say they do not each see some failings in the other’s personality or attitude towards the responsibilities of being a parent.
The mother sees the father as being domineering towards her and unnecessarily intrusive into her parenting of the children in her time, particularly in regards to what activities they will do with the father. From her perspective, there will always be something else the father wants to do with the children, in her time and “if she gives the father an inch, he will want to take a mile”.
On the other hand, the father sees the mother as inflexible and as being either unwilling or unable to compromise with him, in a way that will serve the children’s best interests. From his perspective, it is more important that the children engage in a wide variety of activities, likely to be of benefit to them, regardless of whether the activities occur in his time or the mother’s.
Where the mother sees the father as dogmatic and demanding about the children, he perceives himself as being wholly reasonable and fixed on the pursuit of their best interests.
These impressions are not made to suggest any criticisms of the parties themselves. They have been separated for several years now. Necessarily they lead different lives, with different preferences and priorities. They bring different personalities and backgrounds to the parenting of the children concerned. As a result, they bring different but quite possibly complementary attributes to the parenting of the children.
In such circumstances, it is inevitable that disagreements will arise between them and it would be unnecessarily utopian to think those disagreements could always be resolved amicably. Particularly as it is my impression that both are capable of stubbornness. The parties’ different personalities inform their perceptions of one another and shape what each believes is reasonable, in respect of the children, as with everything else.
Although equally committed to the long term welfare of the children, my perception is that the parties do not parent [O] and [H] either consultatively or empathetically with one another. Sadly, they do not particularly like each other. I hope this will not always be so.
As a result, to a large extent, they parent the two children in parallel, each feeling that he or she has full authority to make decisions about the children, relating to his or her time with them, independent of the other.
To use a clumsy metaphor, they are travelling down the same highway with one another, in their parenting of the children, with the same destination in mind – their children becoming happy, well adjusted and well educated adults, after having had rich and fulfilling childhoods. However, they travel the journey in separate vehicles, divided by an unbroken white line.
The difficulty with the metaphor, as with the case, is that the children must regularly pass between their parents’ two vehicles and be passengers in both. Problems will arise when one party wants to take a deviation from the main parenting route, of which the other disapproves. The question for the court being “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared, or deeply divided?”[2]
[2] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
Such issues do not matter in respect of the day to day parenting of the children. Pursuant to the applicable legislation, parents have authority to make decisions, about day to day issues to do with their children and so do not have to consult with one another about them [section 65DAE].
However, significant difficulties are liable to arise in respect of major issues to do with children, particularly if those decisions impinge upon the periods the children spend with each of their parents and the parents concerned cannot reach a compromise about them.
I accept in the present case that the parties concerned have tried to negotiate the differences between them but without success. It is also noteworthy that, for a significant period after their separation, they have been able to parent [O] and [H], without the need for any formal orders.
Accordingly, they cannot be characterised as unreasonable people or failed parents. They are merely different – in character and personal orientation. Inevitably this must lead to differences of opinion between them, particularly since the marriage between them has ended.
An occurrence which, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
However, it is regrettable that I must make a decision between the parties’ various competing proposals, about matters which are of such apparent importance to both of them. Inevitably my decision will be informed by my own subjective views about all manner of things – the value of overseas travel for children; the benefit of routine for children; the weight to be given to issues of cultural diversity; amongst many other things.
Both parties can muster powerful arguments, as to why his or her position is to be preferred. Necessarily there is no right or wrong answer to the questions posed by the parties’ competing applications. I must exercise a discretion, which is to be informed by my views of how [O] and [H]’s interests will be best served in future. Different minds can reach different views about the issues involved and it is difficult to say one view has greater validity than another. This is equally so in respect of the parties’ competing proposals.
I say these things because I am well aware that inevitably one or other of the parties, and possibly both of them, will feel hard done by whatever decision I ultimately make. I cannot manipulate the various options available, like the surface of a rubik’s cube, to achieve a perfect outcome, which is satisfactory to both.
However, there must be a formal mechanism to resolve the various disputes between the parties, who are citizens as well as parents. One of the essential ingredients of a well ordered society is that it provides its citizens with mechanisms for the resolution of disputes between them.
The court’s decision is one such mechanism, although the subject matter of the dispute concerned is idiosyncratic and deeply personal to the parties concerned. I am also well aware that the resolution I will impose on the parties effects others, who have not been heard by me – namely [O] and [H] themselves.
I hope the resolution of the various issues will not cause any undue deterioration in the parenting relationship between the parties and each will cope with the decision which will be made and so, as best as possible, the difficulties for the two children concerned will be minimised.
The issues between the parties
The children attend [omitted] College. The school has four terms each year. Each term finishes on a Friday and each, apart from term 1, commences on a Monday. The end of term 1 and 3 holidays are just over two weeks in duration.
This year, on a trial basis, the holidays between the second and third terms (the mid-year school holiday) will be just over three weeks in duration, being from Friday afternoon on 27 June until Monday morning on 21 July.
As previously indicated, the parties are committed to dividing the holiday periods equally between them. In respect of the end of term 1 and term 3 holidays each year, the father wishes to divide them so that the mother has the first half, which will be calculated from the conclusion of school on the last Friday of each term until 5:00pm on the middle Saturday of the two week holiday; and he has the remainder of the holiday, being from 5:00pm on the middle Saturday until school recommences on the following Monday.
Necessarily this would mean that the arrangement, whereby the children spend alternate weekends with their parents, would be suspended, as soon as school holidays commence.
On the other hand, it is the mother’s position that the calculation of the division of the end of term 1 and term 3 holidays should be made by reference to the first Monday of each holiday. She proposes that she should have the children from the Monday morning of the first week until the Monday morning of the second week, with the father to have the children for the remainder of the holiday.
From her point of view, the benefit of this would be that she would have a complete weekend, with the children, in the middle of each such holiday period.
From the mother’s perspective, this would be a better utilisation of the time available. Her time off is limited, as a result such weekend time is precious to her. She would not want it divided. How the mid-year school holiday is to be utilised by the parties is also a matter of controversy, particularly in 2008.
The father wishes to travel overseas with the children from Wednesday 25 June 2008 until Thursday 24 July 2008, a period of about 30 days. He wishes to travel with the children first to Portugal; then onto the United Kingdom; then Latvia; and France.
If he is successful in his proposal, the children would miss three days of school at the commencement of the proposed holiday and three days at its conclusion. Necessarily he would have all of the holiday involved.
The mother believes that this holiday is too long for the children to be away from her and will be unduly disruptive to the shared parenting regime. She believes a shorter holiday, which will marry more completely with the school holiday time available, is more appropriate.
The father has proposals, regarding time the children could spend with their mother, to make up for the time which will be lost to her, by reason of his proposed holiday. The mother is concerned that if the court accedes to this proposal, in conjunction with the father’s plan for the overseas holiday, it will extenuate the disruption to the children’s routine, which she does not believe will be in their best interests.
The father has an interest in skiing, which the children share. For the past two years the father and children have attended an event known as SA Schools Snow Week, which is held in Mt Buller in Victoria. As the name implies, it is for teams from schools in South Australia, including [omitted] College.
It is the father’s position that the children have greatly enjoyed these occasions, particularly the opportunity “to ski with their mates” from school. Dr Liepins deposes that the children regard their holidays at
Mt Buller as the best holidays they have ever had.
The government funded schools, in South Australia, have a two week holiday between their second and third terms. SA Schools Snow Week is scheduled to occur in the second week of the government funded school’s holiday.
As previously indicated, [omitted] College, in 2008 and beyond, will have a three week holiday for this period. How this holiday will correlate to the holiday of the government funded schools, and so the placement of SA Schools Snow Week, is unclear, certainly beyond 2008.
Accordingly, the father proposes that orders be made which will ensure that he always has the opportunity to spend SA Schools Snow Week with the children, regardless of when it falls. It would become, in effect, “a moveable feast”, independent of any formulaic division of the holiday in question.
As previously indicated, the mother has no specific objections to the children skiing. Nor has she any great difficulty with them attending SA Schools Snow Week, although she considers that the father overstates its importance for the children.
Rather her objection is to the possibility of the father’s interests impinging on her half of the mid-year school holiday. She proposes that this holiday period be evenly divided between the parties and, if SA Schools Snow Week falls in the father’s half, well and good. If not, he can make arrangements to ski with the children, where and how he chooses and the children will not be greatly prejudiced.
Easter is also more properly characterised as a moveable feast, as it is calculated to fall each year essentially by reference to the lunar cycle. Accordingly, in some years it will fall within the first term of the school year and on others it will form part of the end of first term school holiday. In the former eventuality, its equal division between the parties poses problems for them.
In the event that it is a separate holiday, the husband proposes that he have the children from the conclusion of school on the Wednesday prior to Easter until the commencement of school on the Wednesday following Easter, in alternate years and the mother spend the same period of time with the children in the other year. The rationale for this proposal is that it would give him greater opportunity to go away with [O] and [H], in his Easter periods with them.
On the other hand, the mother proposes that the children should spend a shorter period, at Easter, with each of their parents, in alternate years. She proposes that the children spend alternate periods with their parents from after school on Maundy Thursday until the commencement of school the following Tuesday, which will coincide exactly with the school holiday involved.
The final matter is the most contentious, so far as the parties are concerned. The father seeks that an order be made which would require the mother to take the children to the Adelaide Latvian School and any performances and functions scheduled by the School, which involve the children, at times when the children are in her care.
The mother sees this as an unnecessary imposition on her time with the children and her choice as to how they are parented in that time. On the other hand, it is the father’s position that such attendances are essential to the development of the children’s cultural identity as children of Latvian derivation.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [O] and [H]’s best interests is the most important consideration in this case [section 60CA] and must be the court’s paramount concern.
The objects of Part VII [section 60B(1)] emphasise that children should receive adequate and proper parenting, so that they may achieve their full potential. As a result parents are encouraged to be closely involved in their children’s lives.
Relevant principles, to which the court must have regard, include that parents share duties and responsibilities in respect of their children and should agree about the future parenting of their children; and children have a right to enjoy their culture, which includes the right to enjoy that culture with other people, who share it with them [section 60B(2)].
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations [section 60CC(2)] – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents; and secondly the need to ensure that they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
In this particular case, the primary considerations are not relevant. This is not a case which concerns allegations of neglect, abuse or family violence. Both [O] and [H] are well loved and well cared for children.
In addition, the parties have agreed upon care arrangements for their children, which the applicable legislation regards as being the optimal one for the care of children – an equality of time arrangement. Accordingly, the children will have an equally meaningful relationship, with both their parents.
The court is required to consider first, before considering any other outcome, the children concerned spending equal periods of time with both their parents, if the presumption of equal shared parental responsibility applies [section 61DA].
In this case, the parties agree that the presumption applies and its operation should lead to an equal time arrangement. Necessarily the parties agree that such an arrangement will both be in their children’s best interests and reasonably practical to put into operation [section 65DAA(5)].
The additional considerations are more numerous [section 60CC(3)]. Their application must depend on the particular circumstances of the case involved.
The additional considerations include any views expressed by the children concerned [section 60CC(3)(a)]; and the background of the children, which includes their lifestyle, culture and traditions [section 60CC(3)(g)].
The Evidence
The parties each relied on an affidavit, which set out the evidence on which they relied in support of their respective positions.[3] In addition, each party provided oral evidence from the witness box and was cross-examined by counsel for the other party.
[3] The mother’s affidavit filed 14 December 2007; and the father’s affidavit filed 23 January 2008
I suspect that, from each counsel’s point of view, the purpose of this additional oral evidence was so that both of their clients could have an opportunity to persuade me directly, in their own words, as to the appropriateness of his or her preferred position.
Both parties are intelligent and articulate people, who passionately believe that he or she is right. I do not think that either the father or mother has adopted the position that he or she has out of spite for the other, but rather he or she sincerely believes that his or her preferred outcome is likely to be the best one for the children concerned.
My impression is that the parties’ economic and employment circumstances are quite different and this is a source of friction between them. As a self-employed [occupation omitted], the father has the capacity to earn a very high income and to enjoy flexibility in his work hours. He is able to take considerably longer holidays than the mother – around six weeks each year.
The mother has returned to the workforce, after a significant period of being a home maker. Her skills as a [occupation omitted] require some upgrading. She chooses to work part-time, to be more available for the children and to fit in with their school routine. As a result, she has access to considerably less paid holidays than the father – around twelve days per annum. Finances are much tighter in her home than the father’s.
The father enjoys spending money on activities, in which he can participate with the children – camping; water and snow skiing; and interstate travel. The mother is not in a position to match these activities. I suspect that this is a source of both some resentment and some tension for her, particularly what will be the consequences of it for the children.
The father is a high achiever, who has extensive qualifications in his profession. He wishes the children to emulate him. It seems that he had a full and successful education at [omitted] College and was able to travel overseas with his parents, when he was a child, things which he believes have immeasurably enriched his life.
Both the father’s paternal and maternal grandparents came to Australia from Latvia following the Second World War. His parents both spoke Latvian in the home, as he did himself. His upbringing was one deeply imbued with Latvian cultural influences.
During his childhood, both at primary and secondary level, he attended Latvian School. As a result, one of his matriculation subjects was Latvian. His achievements in this subject assisted him to enter [omitted] School, which was the base on which his professional skill has been built.
As a result of his background, the father has a special interest in Latvian folk culture. In 1987, he travelled overseas, in North America and Europe, for an extended period, performing Latvian folk dances and songs. From his perspective, the discipline involved in learning Latvian and both rehearsing and performing Latvian folk songs and dances has been of great benefit to him and has been a significant factor in shaping his identity.
The father is proud of his achievements, which are many and varied.
I do not consider that it is egotism that causes him to wish [O] and [H] to emulate his achievements. Rather, it is an understandable human characteristic that parents want their children to follow in their footsteps. This characteristic is particularly well developed in the case of Dr Liepins.
The mother did have an interest in Latvian culture, when she was married to the father. With the end of her marriage, her interest in these things has faded, in the absence of the stimulus of her relationship with Dr Liepins and his abiding interest in Latvian culture. Again, this is not an uncommon phenomenon. Spouses very often change their interests and personal orientations after the marriage between them is over.
That is not to say the mother is now opposed to Latvian culture or the children being involved in it. Rather she no longer has the same level of interest or enthusiasm that she once had. However, she assisted the children to prepare artwork, which was used in a Latvian calendar for 2007.
She acknowledges that, about six months ago, she stopped taking the children to Latvian School in the weekends in which they were in her care. The father sees this as a provocative action and it seems to have added more tension to the parenting relationship between the two, particularly as the mother did not discuss the issue with him before unilaterally withdrawing the children from the school during her periods with them.
My impression of the mother is that she is a dedicated and capable parent. If the children expressed an interest in some particular activity, which took place on weekends, she would, in reason, ensure that the children took part in it. Her difficulty with Latvian School is that she perceives that this comes from the father rather than the children and she is resentful about it.
Both parties perceive the difficulties in their parenting relationship in the same terms and both make similar complaints about the other.
The father complains that the mother sees their relationship in terms of who wins and who looses and this leads her to oppose what he perceives as wholly reasonable requests made on his behalf.
The mother sees the father as frequently making requests for extra accommodations for himself, within the shared parenting framework, but never making any concessions to her in return. Individually she says she has no problem with many of his requests but their cumulative effect is too disruptive and makes a mockery of the agreement that time will be divided strictly in an even fashion. In short, both parties see the other as inflexible, unreasonable and generally inconsiderate of him or her.
The father has re-partnered. This has added a further level of tension to the parties’ relationship with one another. I would hope that time would assist the parties to have a more trusting and empathetic relationship with one another in future. However I think I would be naïve to consider that this was a strong possibility. Rather the current issues with which I must deal are probably emblematic of endemic problems within the parties’ relationship with one another and so unlikely to resolve.
With the greatest respect to the parties, the issues they wish me to determine are unlikely to have any great significance to the prospect of [O] and [H] achieving the full potential as adults. Whatever happens, they will be capably parented and well educated. Theirs will not be a life of deprivation. Like their parents, they are likely to be high achievers. In my view, the greatest threat to their long term well being is likely to be the low level but endemic conflict between their parents.
Conclusions and application of legal principles
(a) The overseas holiday in 2008
The father categories this holiday as a one off, as he cannot afford to travel overseas annually but is likely to be restricted to an overseas holiday every three or four years. The holiday has a number of purposes.
Firstly he wishes to travel to Portugal to attend an international [occupation omitted] conference. Thereafter he proposes going on to London, where his brother lives and where he himself lived and practised his profession in the early 1990’s. His brother is [H]’s godfather. After a few days in London, it is planned that he and the children will go on to Latvia to attend an international Latvian Song Festival. The final aspect of the trip will be twelve days spent in France before returning to Adelaide.
The father deposes that it is important to his professional development that he attend the conference in Portugal. I accept this is so. Apart from the experience of exposure to a different culture, he does not suggest that the children will derive any specific benefits from visiting Portugal.
The benefit of the children visiting London, from the father’s perspective, is that it will enable them to renew their bonds with their uncle and godfather. The visit to Latvia is the centrepiece of the trip, being focused as it is on the exposure of the children to Latvian culture.
The mother sees the trip to France as an opportunistic “add on”, which if abandoned would enable the children to return to Australia without missing any school and with the minimum amount of disruption to them. The father justifies this aspect of the trip on the basis that [O] is learning French at school. In addition he points to his own experience of travelling overseas at a tender age and believes that it left him a more rounded person, who was more open to experience.
I do not consider that the children are too young to travel overseas.
I accept that they are likely to retain long term memories of such an experience and this will be enriching for them. I accept that they will derive significant advantage from attending the International Latvian Song Festival, with their father, particularly as they will be engaging with him in something which he loves.
Having accepted the benefits for the children of travelling overseas, I can see no great point in curtailing the trip, as the mother proposes, even though I concede that the benefits to the children are difficult to quantify and are somewhat amorphous. However I do think it to be axiomatic that “travels broadens the mind”, particularly the minds of the young.
Having reached this conclusion, I do not think that its extension, particularly the French component of it, will be unnecessarily disruptive of the children’s school commitments and the benefits will outweigh the disadvantages, particularly as only a few days each side of the holiday will be school days. I propose making the orders for make up time which the father proposes.
(b) The skiing holiday in 2009 and afterwards
I accept in general terms that the children are enthusiastic about the prospect of attending the skiing week at Mount Buller in 2009 and each year thereafter. However wherever their enthusiasm will persist or will be replaced with an interest in something else in future is something unknown to me.
In such circumstances, I can see no great point in entrenching the children’s attendance at S.A. Schools Snow Week, in the parenting orders regarding them, in effect in perpetuity. Given the conflicted circumstances of the parties, it seems sensible that the orders regarding the children should be kept as simple as possible – so as to avoid the possibility of future controversy arising between them.
In my view there is much common sense in the mother’s perception of the father that there will always be something likely to arise of great significance to him and necessarily to the children which will require the modification of the existing orders. This will inevitably lead to conflict between the parties and, in considering the best interest of the children, I should ensure that this potential is kept to a minimum.
At present it is S.A. Schools Snow Week that is important to the father. In the future it is likely to be something else, as yet unknown. The parties are to be encouraged to regard the orders upon which they have agreed as being final and not subject to endless revision as a result of extraneous and unforeseen contingencies [section 60CC(3)(l)].
I reach this view given the nature of the parenting relationship between the parties concerned. They parent the children in parallel.
Their relationship is not such that it can readily cope with the intrusions of the other into the time he or she spends with the children. This might not be the optimal outcome for the children but it is the reality of their lives.
Accordingly I think it is sensible that in making orders regarding the children I encourage the parties to plan activities for the children in the portions of the holidays which are allocated to each of them. This will ensure that the children are able to go skiing with their father (and indeed with their friends) on a regular basis and indeed will enable the father to participate in a wide variety of enriching activities, both physical and intellectual. The wellbeing of [O] and [H] does not depend upon them attending this specific skiing week at Mount Buller and the construction of convoluted orders regarding it.
(c) The configuration of the end of 1st and 3rd term holidays
I can see strong arguments to favour each of the parties. The mother prefers her configuration, as it would always give her the middle weekend of each these holidays. I accept that time is precious to her and she is not as well resourced as the father in terms of taking longer interstate holidays. In these circumstances, a long weekend with the children is likely to be precious for her.
However the issue is not a significant one so far as the best interests of the children are concerned, whom I consider will spend many varied and enjoyable holidays with each of their parents, regardless of how the school holidays periods are divided up. The usual practice of courts such as this one is to regard school holidays as having commenced when school has actually broken up. Indeed schools calculate their holidays on this basis.
On this basis I propose to make the orders the father proposes as to when school holidays are taken to have commenced and accordingly allocate them on the basis he proposes. For the same reason I propose to adopt the mother’s proposals in regards to Easter and confine the holiday period to the time the children are actually away from school.
(d) Attendance at Latvian School
This is the most controversial aspect of the case and the most difficult. One of the more complex tasks for a court, exercising jurisdiction under the Family Law Act, is to determine the best interests of children, in cases where the parents concerned hold different ethnic or cultural values.[4] Cultural background is important to children. It provides them with identity and richness of experience.
[4] See H & H (2003) Fam LR 264 at 269
Australia prides itself on being a multicultural society, which encourages and supports cultural diversity. A large proportion of the Australian community was either born overseas or has a parent or parents who were. This country has been shaped by successive waves of migration, particularly the large scale post Second World War migrations from Europe. I accept that it is important for the children and grandchildren of migrants to know where their ancestors came from and both what they brought with them and what they left behind.
There is great debate over the meaning and concept of culture – amongst politicians, members of the community, as well as in courts of law. There is increasing controversy about the benefits of multiculturalism versus the benefits of cultural homogeneity, particularly in times of global uncertainty.
It is not my function to elaborate upon these controversies, other than to point out that culture is learnt, it is not innate, or biological.[5] Accordingly, culture is mutable, changing as it comes into contact with other influences and forces. As such, [O] and [H] are heirs to a complex cultural inheritance on both their paternal and maternal sides but the cultural tradition they will pass onto their children will be very different to the one their parents inherited from their parents.
[5] See H & H supra at 270
[O] and [H] are the fourth generation, on their father’s side, to live in Australia. I have not been provided with any evidence regarding the mother’s cultural provenance. However it is my impression that both children are thoroughly immersed in the mainstream English-speaking culture of Australia. It is the culture of the professional elite in this country. For better or worse, this is likely to be the main flavour of their future cultural identity. They will be Latvian Australians rather than Australian Latvians.
Both the father and mother will parent the children according to the mores of an upper middle class mainstream Australian family, where English is the predominant language. Their mutual aspirations for the children are likely to be that they become tertiary educated professionals, as they are themselves. The lingua franca of such professionals, around the world, is educated English. As such, other cultural influences, outside the mainstream, are likely to struggle for the children’s attention and will have to be inculcated in them rather than absorbed through cultural osmosis.
This is the father’s point. He argues that it will impossible for the children to assume any proper knowledge of Latvian culture, particularly the Latvian language, if they only attend half of each of the scheduled classes. Their will be a lack of continuity in their exposure to things Latvian. I agree that this is likely to be true.
Pursuant to section 60CC(3)(g) the court is directed to consider the background of the children concerned, which includes the lifestyle, culture and traditions both of those children and either of their parents. This follows on from section 60B(2)(e) which speaks of the right of children to enjoy their culture both individually and with those they share it with.
In this context, enjoy is an interesting word to use. In one sense it means to take delight or pleasure in; in another sense it means to have the use or benefit of.[6] In the former sense the children will be able to enjoy Latvian culture by attending the Festival with their father later in the year, although they will not actively take part in it.
[6] Concise Oxford Dictionary
In addition the children will also be able to enjoy Latvian culture by attending the Latvian Midsummer Festival in Adelaide with their father, something to which the mother has consented. It is also likely to be the case that they will be significantly exposed to other aspects of Latvian culture at other times when they are in their father’s care. Accordingly the mother’s opposition to taking the children to Latvian School will not result in the total abnegation of the Latvian aspects of the children’s backgrounds.
However it may be the case that they will not have the benefit of Latvian culture, in the same sense as their father or paternal grandparents, if they do not attend each and every possible Latvian School class. This is particularly so in respect of the linguistic aspect of Latvian culture and perhaps some of the dancing and singing aspects of it which depend on regular practice and continuity of exposure.
As I have already remarked, the children will be subject to all manner of cultural influences and it will be difficult for them to attain fluency in Latvian, unless they are either immersed in it (which is unlikely, given the dominance of English in their environment) or they exercise considerable discipline in learning it, a discipline which will be difficult to maintain if their attendance at classes is irregular.
What are the views of the children in respect of attendance at Latvian School is unknown to me. I suspect, given their ages, that they do not currently see any great personal benefits from learning the language. The value of the effort involved is likely to become apparent to them, when they are more mature and are more insightful regarding the potential benefits of their application.
Certainly the father is proud of the discipline which he both personally applied to himself and was no doubt also applied to him, perhaps when he was reluctant but which has now resulted in his fluency and familiarity with both Latvian language and cultural matters.
Children are frequently offered many things the benefits of which may not be immediately obvious to them but which require discipline and application on their part to achieve fruition – tennis lessons; music lessons; tuition in a foreign language; karate lessons; ballet classes; to name but a few. Obviously these opportunities are more frequently offered to the children of the affluent.
It is a common phenomenon of middle age that we regret that we did not apply ourselves better to our piano practice or irregular verbs or whatever and that now the opportunity to play the piano or speak a language with fluency or display some other accomplishment has passed us by. But such things are not fundamental to our wellbeing or sense of identity as adults. They are peripheral matters.
[O] and [H] are not part of a minority group within Australian society, which is struggling to assert itself. Rather they are fundamentally part of the cultural mainstream. They do not need to be presented with positive role models, who share their background, to be protected from the corrosive effects of racism.
The children are unlikely to be the victims of any prejudice or discrimination because of their background. Accordingly, whether the children do or do not speak Latvian or have as comprehensive knowledge of Latvian culture as their father, is not likely to be central to their emotional wellbeing.
I concede that it would be a good thing for the children if they speak Latvian, with fluency, when they are older. However this is likely to render the children more accomplished rather than to contribute to their fundamental sense of identity or well being. These children’s sense of identity is not under threat or in a state of flux. They know who they are.
In addition, I cannot assess whether the children are likely to share their father’s level of commitment to the undertaking either now or in the future. The children becoming well versed in things Latvian emanates from the father rather than from the children themselves. If it was otherwise, the mother would likely be more supportive of the children’s weekly attendance at the school.
I also accept that the children being able to engage in Latvian activities with their father is a good thing. However regardless of whether they attend Latvian School each week or each fortnight these things will be open to them, as will the opportunity to interact with their cousins in a variety of settings. The children will be well exposed to Latvian cultural matters when in their father’s care. From the father’s point of view, this may not be the optimal level of exposure but, in my estimation, it will remain considerable.
The parties are unable to reach agreement on this significant issue. It is regrettable that such a sensitive matter should fall to me for determination. As I remarked at the outset different minds are likely to have different view in respect of it. In my view the determinative issue is the nature of the parties’ parenting relationship with one another.
One of the major purposes of the family law legislation is to provide mechanisms for spouses, after failed relationships, to live separately and apart and to make arrangements for the care of their children and the division of their property. In this case, the parties have agreed upon the legislatively mandated optimal arrangement in respect of their care of their children. As a result the children will have an equally meaningful relationship with both their parents and will be protected from being subjected to direct harm. Accordingly their best interests will be well served.
However, although the parties agree on this arrangement, they are living apart and their relationship is not without its difficulties and tensions. In spite of the good intentions of the legislation, there are some issues between them which they are incapable of resolving consensually. Given the dynamic between them, it would be unrealistic to expect them to be able to resolve all such issues.
From the mother’s perspective, she resents what she sees as the father’s unnecessary intrusions into the time she spends with the children, the division of which has been agreed between the parties. In her words “I want to be free to spend time with the children how I want to”. I do not reject the validity of this view, given the parties’ separation and the end of the marriage between them. Subject to the best interests of the children, each of them is now free to live how they choose.
I accept on some weekends, when the children are with her, the mother has plans to go away with them. Her family has a property at [omitted], which she often visits with them. If the children have other commitments on these weekends, at the father’s direction, she will feel forever beholden to him and this is likely to lead to resentment on her part, which in turn has the potential to lead to conflict between the parties.
In spite of good intentions, a spirit of empathy and collaboration cannot be inserted into parental relationships through legislative fiat. The father’s desire for the children to attend Latvian School is well intended and readily understandable but it can only come about at the cost of some restriction on the mother’s time with the children.
Given the nature of the parties’ relationship with one another and the manner in which they have elected to divide the children’s time between them, I do not think such a restriction is in the children’s best interests, as it will increase the potential for conflict between their parents.
I do not think that any advancement of the children’s best interests, which will come from their increased attendance at Latvian School, on the weekends when they are in their mother’s care, is outweighed by this significant detriment, bearing in mind that the children will have a significant exposure to Latvian culture, when they are living with their father. Accordingly, I do not propose to make the orders which the father seeks in respect of Latvian School.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 11 February 2008
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