Lindsey and Christie
[2011] FMCAfam 1196
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LINDSEY & CHRISTIE | [2011] FMCAfam 1196 |
| FAMILY LAW – Parenting – parental responsibility – graduating increases in one parent’s time with children. |
| Family Law Act 1975, ss.60CC(3), 61DA, 65DAA |
| Collu & Rinaldo [2010] FamCAFC 53 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2007) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR LINDSEY |
| Respondent: | MS CHRISTIE |
| File Number: | CAC 22 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | N/A |
| Date of Last Submission: | 10 August 2011 |
| Delivered at: | Canberra |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented Litigant |
| Counsel for the Respondent: | Ms J Haughton |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
The legal representative for the Respondent Mother is requested to engross the orders as set out in the reasons within 7 days.
IT IS NOTED that publication of this judgment under the pseudonym Lindsey & Christie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 22 of 2010
| MR LINDSEY |
Applicant
And
| MS CHRISTIE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter has been before the Court for a not insignificant period of time. The Initiating Application was filed by the Applicant Father on 7th January 2010.
These reasons deal only with parenting matters concerning the two young children of the relationship between the parties, [X], who is 3½ years old, and his sister [Y], who is now 2 years of age.
Based solely on the number of orders made in the proceedings, the matter has regularly been before the Court, indeed on at least eight (8) separate occasions. No criticism is intended to observe that essentially the singular issue that brought the matter to Court in early 2010, remains the fundamental issue in late 2011. That issue is the frequency and the duration of the time that the Applicant Father spends with the children.
The three family reports or memoranda, which also testify to the intensity of the contest, should be taken to be admitted into evidence pursuant to the principles set out by Warnick J in SPS & PLS.[1]
[1] SPS & PLS (2008) FLC ¶93-363.
Put another way: this is not a ‘no contact’ case. It has always been about the frequency and duration that Mr Lindsay spends with his children. As will be confirmed in more detail shortly, he has always spent very regular time with them, albeit not as long as he would wish. More fundamentally, the issue or the catalyst for the on-going litigation is the Father’s desire to spend more time with the children, while the Mother is rather more anxious about the duration of the Father’s time given their young ages.
As I have just indicated, there is another factor in the proceedings, namely the Mother’s anxiety in dealing with the Father, who, she says, she finds as controlling. Her anxiety also relates to how she fears the children (especially the youngest child) will or may cope with spending increased time with their Father. Being unable to make any formal finding, nor would it be appropriate to do so in the circumstances in any event, I simply observe, and do so without criticism, that the Father appears in Court as a person determined to ensure that appropriate time with his children is secured.
All of that said, as I note later, the parties are not completely devoid of the capacity to discuss and to reach agreement, because they have been able to agree on a number of matters, such as orders in relation to Christmas, and regarding time that the children spend with their parents on relevant birthdays. Nor is there any issue, as I understand it, that Ms Christie has been, and remains the children’s primary carer. This is so notwithstanding her return to work on a part-time (two days per week) basis. Indeed, notwithstanding Ms Christie saying that “Mr Lindsay and I do not communicate” (para.16 of her affidavit filed on 17th June 2011), in the same affidavit (at para.17), Ms Christie says that “Mr Lindsay and I have been able to negotiate some time changes with each other.”
As with many parenting matters, all of this suggests to me that, however long the road ahead may appear to be, to speak somewhat colloquially, the parents will likely ‘get their act together’. It is primarily a function of time for this to occur. As the children get older, and the fractures of the broken relationship heal to some degree, life will eventually move on for all concerned, and do so free from Court involvement. All of this, however, may seem more aspirational than anything else at the moment.
In order to expedite matters somewhat, the parties have agreed that the limited parenting issues be dealt with solely on the basis of the affidavit material, as well as the written submissions provided by the parties. It necessarily follows that there has been no formal scope to test any of the evidence relied upon by either party. Having agreed to such a course, the Court may take it that the parties are cognisant of the limitations that it necessarily imposes, particularly in relation to matters of evidence.
Once parenting orders have been made, it is envisaged that property matters, which are formally before the Court, will then be dealt with.
Orders Sought
The parties’ respective ‘orders sought’ are as follows.
Orders sought by the Father
1. That the parties have equal shared parental responsibility for the children:
a.[X], born [in] 2008 (“[X]”)
b.[Y], born [in] 2009 (“[Y]”)
2. The children live with their Mother.
3. The child [X] spend time with the Father each week:
a.5pm Tuesday to 9am Wednesday;
b.5pm Thursday to 9am Friday; and
c.10am Saturday to 10am Sunday
4. The child [Y] spend time with the Father each week:
a.5pm Tuesday to 9am Wednesday
b.Thursday from 5pm to 7pm; and
c.Sunday from 10am to 5pm
5. From 29 November 2011, [Y] spends time with the Father each week:
a.5pm Tuesday to 9am Wednesday;
b.Thursday from 5pm to 7pm; and
c.10am Sunday to 9am Monday.
6. From 29 May 2012, [Y] spends time with the father each weeks:
a.5pm Tuesday to 9am Wednesday;
b.5pm Thursday to 9am Friday; and
c.10am Sunday to 9am Monday.
7. From 1 February 2013, [X] and [Y] spend time with the Father each week:
a.5pm Tuesday to 9am Thursday; and
b.10am Sunday to 9am Monday.
Communication
8. That the children may communicate with either parent at any time. The parent who does not have the children may call the children at any reasonable time. The parent who has the care of the children will facilitate such communication as far as practicable.
Special Days
9. That the usual arrangements in accordance with these orders be varied on particular days as follows:
a.That the children spend from 7pm Christmas Eve until Noon Christmas Day with the Mother each year and from noon until 6pm Christmas Day with the Father.
b.That the children spend from 10am to 1pm with the Mother on Mother’s Day and with the Father on Father’s Day regardless of which parent they would otherwise be with in accordance with these orders.
c.That the children spend from 10am to 2pm (weekend) or 5pm to 7pm (weekday) with the parent who does not have care of the children on each child’s birthday and on the parent’s birthday.
Holidays
10. That the Mother may suspend the regular arrangements for the children detailed in these Orders on up to four occasions per year for up to 7 days for the purposes of taking the children away from the ACT for holidays.
11. That the Father may spend up to four separate blocks with the children per year for:
a.Up to 7 days (6 nights) for a school aged child coinciding with school holidays.
b.Up to 3 days (2 nights) for a 3 or 4 year old child.
12. That the provisions above are subject to:
a.No less than two weeks notice, and no more than 6 months, to the other parent
b.The blocks of time are to be no closer together than 3 months
c.The blocks of time are not to include Christmas or ‘special days’
d.In the event the parents blocks of time clash, the parent who first gave written notice will secure the block he or she requested
Variations to these Arrangements
13. That all longer term changes to these arrangements be in writing.
14. that either parent may choose not to spend scheduled time with the children and request that the other parent care for them instead:
a.On 3 days notice
b.For up to 7 days (6 nights) on two occasions per year
Parental Responsibility
15. That the parent who has the care of the children is responsible for minor day-to-day decisions concerning the children.
16. that the parents have equal shared responsibility for major, long-term decisions including school enrolments and transfers.
Transport
17. The father collects the child(ren) at the beginning of each visit with the Father and the Mother retrieves the child(ren) at the end of each visit with the Father unless otherwise agreed.
Orders sought by the Mother
18. That the children [X] born [in] 2008 and [Y] born [in] 2009 live with the Mother.
19. (Stage 1) That until February 2012 the children spend time with their Father as follows:
a.[X] (week 1)
i. from 5-7pm Monday
ii. from 5-7pm Wednesday
iii. anytime between 10am and 5pm Thursday
iv. anytime between 10am and 5pm Friday
v. from 9am Saturday to 5pm Sunday
b.[Y] (week 1)
i. from 5-7pm Monday
ii. from 5-7pm Wednesday
iii. anytime between 10am and 5pm Thursday
iv. anytime between 10am and 5pm Friday
v. from 9am-1pm Saturday
vi. from 9am-1pm Sunday
c.[X] (week 2)
i. from 5pm Tuesday to 8:30am Wednesday
ii. from 5-7pm Wednesday
iii. anytime between 10am and 5pm Thursday
iv. anytime between 10am and 5pm Friday
d.[Y] (week 2)
i. from 5-7pm Tuesday
ii. from 5-7pm Wednesday
iii. anytime between 10am and 5pm Thursday
iv. anytime between 10am and 5pm Friday
20. (Stage 2) that from February 2012 until February 2013 the children spend time with their father as follows:
a.[X] (week 1)
i. from 5-7pm Monday
ii. from 10am Thursday to 5pm Friday
iii. from 9am Saturday to 5pm Sunday
b.[Y] (week 1)
i. from 5-7pm Monday
ii. anytime between 10am and 5pm Thursday
iii. anytime between 10am and 5pm Friday
iv. from 9am Saturday to 9am Sunday
v. from 11 June 2012 9am Saturday to 12pm Sunday (with the father to return her if she becomes distressed )
c.[X] (week 2)
i. from 5pm Tuesday to 8:30am Wednesday
ii. anytime between 10am and 5pm Thursday
iii. anytime between 10am and 5pm Friday
d.[Y] (week 2)
i. from 5pm Tuesday to 8:30am Wednesday
ii. anytime between 10am and 5pm Thursday
iii. anytime between 10am and 5pm Friday
21. (Stage 3) that from February 2013 until February 2014 the children spend time with their Father as follows:
a.[X] (week 1)
i. from 5-7pm Monday
ii. from 10am Thursday to 5pm Sunday
b.[Y] (week 1)
i. from 5-7pm Monday
ii. from 10am Thursday to 5pm Friday
iii. from 9am Saturday to 5am Sunday
c.[X] (week 2)
i. from 10am Thursday to 5pm Friday
d.[Y] (week 2)
i. from 10am Thursday to 5pm Friday
22. That from February 2014 the children spend time with their Father as follows:
a.During school terms:
i. From 5-7pm Monday
ii. From after school Thursday until 5pm Friday Sunday each second week, commencing on the first Thursday of each school term
iii. From after school Thursday until 5pm Friday each second week, commencing on the second Thursday of each school term.
Communication
23. That the children may communicate with either parent at any time. The parent who does not have the children may call the children at any reasonable time but not more frequently than twice a week. The parent who has the care of the children will facilitate such communication as far as practicable.
Special Days
24. That the usual arrangements in accordance with these orders be varied on particular days as follows:
a.That the children spend from 7pm Christmas Eve until Noon Christmas Day with the Mother each year and from noon until 6pm Christmas Day with the Father.
b.That the children spend from 9am to 3pm with the Mother on Mother’s Day and with the Father on Father’s Day regardless of which parent they would otherwise be with in accordance with these orders.
c.That the children spend from 9am to 1pm (weekend) or 5pm to 7pm (weekday) with the parent who does not have care of the children on each child’s birthday and on the parent’s birthday.
Holidays
25. That the Mother may suspend the regular arrangements for the children detailed in these Orders on up to four occasions per year for up to 7 days for the purposes of taking the children away from the ACT for holidays.
26. That the Father may spend up to four separate blocks with the children per year for:
a.Up to 7 days (6 nights) for a school aged child coinciding with school holidays.
b.Up to 3 days (2 nights) for a 4 year old child.
27. That the provisions above are subject to:
a.No less than two weeks notice, and no more than 6 months, to the other parent
b.The blocks of time are to be no closer together than 3 months
c.The blocks of time are not to include Christmas or ‘special days’
d.In the event the parents blocks of time clash, the parent who first gave written notice will secure the block he or she requested
Variations to these Arrangements
28. That all longer term changes to these arrangements be in writing.
29. that either parent may choose not to spend scheduled time with the children and request that the other parent care for them instead:
a.On 3 days notice
b.For up to 7 days (6 nights) on two occasions per year
Parental Responsibility
30. That the parent who has the care of the children is responsible for minor day-to-day decisions concerning the children
31. that the parents have equal shared responsibility for major, long-term decisions including school enrolments and transfers, however, if no agreement can be reached the Mother will have the responsibility for the final decision.
32. That in the event a child is ill, the child will remain in the care of the Mother for the duration of the illness.
33. That each of the parents are restrained from using physical discipline on the children.
Property
34. That in accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splitable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Lindsay from his interest in the [P] Superannuation ([P]), Ms Christie is entitled to be paid (by the Trustee of [P]) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 using a base amount of $60,000 and there shall be a corresponding reduction in the amount Mr Lindsay would be entitled to receive but for these orders.
35. That the operative time for the Order 17 is four business days after service of these orders on the Trustee.
36. That the Husband pay to the Wife the sum of $200 per week by way of spouse maintenance.
37. That each of the Husband and Wife retain all other items in his or her possession including but not limited to, all bank accounts, motor vehicles, and personal possessions.
Legal Principles
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[2]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] 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 (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[2] Mazorski v Albright (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[3]
[3] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Discussion
As I have earlier indicated, “compromise” is not a word that reasonably or frequently could be used in relation to these parents. For example, as will have been observed from a close reading of the respective orders sought, in relation to changeover on special days and week-end time, one party seeks changeover to be at 9am, while the other party seeks it to be at 10am. Why one or both parties could not suggest, or at least accept 9.30am as a ‘middle or third way’ is never explored let alone explained.
Yet, notwithstanding such pedantic, nit-picking things, having observed both parents for a very significant period of time, I have little doubt of their most earnest endeavours to ensure and secure that their children’s best interests are pursued. In fact, one inference that might be possible on the material before the Court is that, especially in the case of the Father, he is almost over-zealous in seeking to prove his parental capacity, if not to Ms Christie, at least to the Court. This may have led to Ms Christie being even more concerned about Mr Lindsay being sufficiently sensitive to the needs of the children, rather than his needs (real or perceived) in parenting the children.
Although there has been no formal hearing or cross-examination, and based admittedly only on my regular observation of the parties in Court, the comments in the various family reports, and the affidavit material, to the degree that I can do so I have formed the view that both parents are very capable people. It may, ultimately, be the case that the issue is (or becomes) how best to channel their respective talents in the parenting of their children, once this litigious phase of “opposition” passes. In a number of respects, the Mother seems almost to acknowledge this when she proposes that the parenting move effectively to something approximating shared care (a 4/10 arrangement for both children by 2014), but only at a slower movement towards this than proposed by the Father.
Another consideration is that both parents work – Mr Lindsay, full time; Ms Christie part-time. Consequently, both children spend significant time in care of one kind or another. This also means that the time that the children are “available” to spend with each parent, that is, when they are not in care, is necessarily more circumscribed. This necessarily makes the contest for that ‘free time’ more earnest and acute.
Although I have already referred to it, I need to return to Ms Christie’s anxiety, its causes and possible solutions.
At paragraph 14 of her affidavit filed on 17th June, Ms Christie outlines her understandable concerns about the frequency of contacts with
Mr Lindsay. She confirms that she finds this “quite stressful.” Under the current arrangements (which are outlined in a table in paragraph 12 of her affidavit) she says: “… It requires Mr Lindsay and I to see each other many times a week, often twice a day, and three times on Wednesdays. It is also a difficult schedule to follow and still do all the other things needed in a household.”[4]
[4] See also Ms Christie’s comments in pars.53 & 54 of her June 17th affidavit.
In my respectful view, it would be difficult for any household to operate with so many disruptions, let alone one where there is parental discord, such as here, and the parties are endeavouring to forge separate new lives as well as deal with the trauma of a broken relationship.
Yet, as I apprehend Ms Christie’s orders sought, notwithstanding her anxiety and the frequency of engagement with Mr Lindsay, her proposal would still require a significant number of changeovers, which, in the absence of either a third party doing them, or them occurring almost exclusively at one of the children’s care facilities, would likely lead to continued encounters between the parties.
In my view, hopefully to state the obvious, the less the parties see of each other, the better. The less contact they have, the less anxious
Ms Christie should be (to some degree at least). The number of changeovers needs to be reduced, and or that they occur only (or as far as possible) at the day-care facility.
No less of concern is the contention made by Ms Christie, at paragraph 56 of her June 17th affidavit, to the effect that, upon advising
Mr Lindsay of medical treatment prescribed for [X], his Father later rang Ms Christie to say that he had researched the matter and that the doctor was wrong. If this was even partly correct, I would regard such action as very concerning and not in [X]’s (or any child’s) best interests. A parent may reasonably ask questions concerning a child’s medical treatment. That should be made of the medical practitioner involved. A parent who is not medically trained should not arrogate to himself or herself some right of veto by virtue of some internet search. “Google” is no substitute for child-specific medical treatment.
The Legislative Pathway
The following comments should be taken as referring sequentially, without necessarily naming, to each of the sub-paragraphs in s.60CC(3) of the Act.
The ages of the children preclude there being any relevant views that the Court should consider.
Given that each parent seeks that the other spend significant time with the children, and that there is no suggestion that the children do not have a soundly based relationship with both parents, the Court may reasonably infer that both children have a good relationship with both parents.
Sub-paragraphs (c) and (i) of s.60CC(3) require some delicate negotiation. By this I mean simply that, because the matter has proceeded only on the basis of written submissions, no formal findings are possible. Typically, there are competing accounts by each of the parties regarding events and incidents that each say is relevant to parenting orders.[5] In such circumstances, and notwithstanding the protracted contest before the Court, in my view, there is sufficient material for the Court simply to note that, apart from occasional hiccups, the children have spent regular time with their Father, and continue to do so. In the light of this, and the respective orders sought, the Court may at least infer that there is reasonable capacity on the part of both parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
[5] For example, the Mother contends that the Father has, at times, drunk alcohol to excess, has sometimes used cannabis, and sometimes has been inattentive to the children while in his care because of his interest in gambling. See Counsel’s Submissions for the Mother, p.15. The Father strongly denies any neglect of the children whilst in his care.
In relation to ‘the likely effect of any changes in the child’s circumstances’, in my view, the focus here should properly be more on [Y] than on [X]. This is so for the obvious reasons that she is younger than her brother, and was but a babe in arms when the parties separated. Thus, at least in terms of attachment and adjustment, the Court may reasonably infer that it is not the same as it was (and is) for [X], who was almost 2 years old when the parties separated in December 2009.
In her Report of November 2010, Ms D cautioned about [Y] spending too long a period of time away from her Mother. Those important comments, now approximately one year old, are still relevant, but obviously cannot carry quite the same weight because [Y] is now one year older.
The Court also needs to consider any relevant dissonance that might arise from any prolonged separation of the siblings. However, given the frequency of time the children have spent with their Father over the last year, again, some of Ms D’s proper cautions need not be applied quite so strictly. In a somewhat similar vein are the comments of Ms R in relation to [X]’s jealousy of his sister spending time with
Ms Christie.[6]
[6] See the submissions of Counsel for Ms Christie, at p.13.
For all practical purposes, given that both parties live in Canberra, I do not see issues of expense in spending time with either parent to be relevant. I accept (with some modification), however, the Mother’s submission that a communication book would be useful. In my view, in the absence of agreement regarding other means of communication, except in cases of genuine emergency, until both children are in primary school, a communication book should be used.
There has never been any substantial issue raised about the capacity of either parent to provide for the various needs of the children.
It is submitted (by the Mother) that [X] is due to start pre-school in 2012, and primary school in 2014. Given his age and birthday (March 2008), it may be that he will be able to start primary school in 2013. Presumably by the time [X] commences primary school (whether in 2013 or 2014), [Y] likewise will very likely be in pre-school. Presumably, too, by that stage both parents will [likely] be working full-time. If this be the case, the real or most immediate issue relates to the practicalities for the time that the children spend with their Father for the next couple of years. Beyond 2014, for example, the only issue is whether the parenting arrangements should be a 4/10 arrangement (as proposed by the Mother) or 6/8 (as proposed by the Father).
For my part, on the basis that the next few years proceed reasonably well, I would be minded to order that, by 2014, unless otherwise agreed in writing between the parties, the regime proposed by the Mother should occur. The children will still be reasonably young, and they will still require (a) a primary residence, and (b) a relatively simple, but reliable routine. This could conceivably occur with the children being picked up by the Father from after school and pre-school on Friday afternoons, and being dropped back to those places on the Monday morning. The same arrangement could occur for one night in the “off week.”
There have been allegations of some physical contest between the parties that have led to AVO proceedings, but which have been resolved by undertakings. The material before the Court confirms that those orders in place are due to expire shortly.[7]
[7] See Mother’s Submissions, pp.9 & 10.
Parental Responsibility: Unfortunately, given the inability of the parents to resolve parenting matters generally, and this now over a significant period of time, it does not augur well for any significant decision in relation to the children to be made either expeditiously or amicably. That being the case, and given that it is not disputed that the Mother has been and remains the children’s primary carer, her alternative order sought should be made. That is, both parents shall have shared parental responsibility for day to day matters, but in the event that a major long-term issue is not agreed, the decision will rest with the Mother. The Mother is also required to consult and keep the Father informed of any and all decisions in relation to major long-term issues in relation to the children.
Section 61DA of the Act refers to a presumption of equal shared parental responsibility when a court is making parenting orders. That presumption may be rebutted for a number of reasons, including matters of abuse or domestic violence. The presumption may also be rebutted where the Court is satisfied that the evidence is such that it would not be in the child’s best interests for such an order to be made.[8]
[8] See s.61DA(4).
Given the history of this matter over the last two years, and in the general circumstances of the case, I do not think that an order for equal shared parental responsibility is genuinely workable between these parents. In my view, the presumption should not apply because such an order is not in the children’s best interests.
With such an order being made, the provisions of s.65DAA have no application.
Conclusion
In the result, as typically occurs, neither parent has secured exactly what he or she wants in relation to orders. On balance, and by way of summary, in my view, a more graduated period of the children’s time with their Father is called for, but not as graduated as sought by the Mother.
In the absence of written agreement between the parties, the time frame, in broad terms, of that graduated increase in time, shall be as follows:
·From 1 January 2012 until 30 June 2012, [X] will spend three overnights per week with his Father, and [Y] will spend one overnight with him;
·From 1 July 2012 until 31 May 2013, [X] will continue to spend 3 overnights per week with his Father, and [Y] will spend 2 overnights with him;
·From 1 June 2013, both children shall spend 3 overnights per week with their Father.
In the absence of agreement between the parties, the days on which these overnights are to occur shall be as sought by the Mother.
The Court considers the orders as set out above, including the order for parental responsibility, and those otherwise agreed between the parties in relation to birthdays and the like, as being in the children’s best interests.
I note that the Family Consultant previously recommended, quite some time ago, that the parties attend the Assisting Responsible Care for Kids programme at Marymead. In the event this has not occurred, the parties are to do so at the earliest opportunity.
The Court requests the solicitor for Ms Christie to engross the orders as set out in these reasons.
Given that these reasons and orders dispose of the parenting matter, and notwithstanding that the parties have previously attended a conciliation conference, but now quite some time ago, I would propose requiring them to attend another conciliation conference. I will hear the parties on this course before so ordering.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 11 November 2011
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