M and G

[2003] FamCA 796

[2003] FamCA 796

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  No. (P)MLF3108 of 2001

BETWEEN:

M

(Father)

and

G

(Mother)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          15 July 2003

DATE OF JUDGMENT:      15 July 2003

REASONS FOR JUDGMENT

APPEARANCES:

Ms Melita of Counsel, instructed by David Stagg Tonkin & Company, Solicitors, DX 98803, Greensborough, appeared on behalf of the father.

Mr Wood of Counsel, instructed by McDonald Slater & Lay, Solicitors, DX 19403, Melbourne, appeared on behalf of the mother.

1. These proceedings concern the manner in which the parents of a young boy should share his time.  The child is B who was born in 1997.  His parents never married each other.  They met in high school.  They cohabited from after B's birth until January 2001.  When B was born his parents were each 18 years of age.

1. After they separated circumstances found the child living with his father.  The mother says that was initially on an arrangement of weekabout care but since then it has transformed itself into a series of consent orders with some dispute, particularly relevant for my present purposes, as to the circumstances in which those orders came about.  The mother suggested that somehow she was coerced or rushed into making rash decisions about B's care.  The father said that the mother had plenty of time to think about the position and chose what was the best course for the child. 

1. The orders that were made initially saw the mother enjoying contact alternate weekends and some part of the school holidays.  The current arrangement has been alternate weekends plus Tuesday evenings for some time.  There has been some flexibility and there has been substantial compliance, much more so than in many cases that I unfortunately get to see sitting in this often sad jurisdiction. 

1. The child is particularly lucky in that he has two parents who are entirely devoted to his care.  They are each seeking to advance his welfare with some understanding of the importance of the other parent in their child's life.  Within the regime that has existed to date the child has prospered. 

1. I am assisted in this case by a report from a court counsellor, who details the background of the family, but more importantly makes observations of the parents, their parenting ability and their relationship with their child. 

1. She observed that B presented as an articulate, serious, young boy, that he was obviously happy to know that his parents told him they love him and he was pleased that they did this.  The counsellor noticed no discernible differences when the child was with either of his parents.  The father played well with the child.  The child had no difficulty parting from either parent. 

1. She concluded that it was obvious that B appeared to be a very likeable boy, well adjusted and at ease with both his parents.  He got a lot of reassurance from them both and they obviously loved him.  Curiously the counsellor said that perhaps his very positive feelings about his mother were because he does not see as much of her, so that when he did see her they do more interesting things together. 

1. I say curiously because there are many other explanations as to why the child felt positively about his mother.  One of course is that he had been encouraged to do so by his father.  Secondly, that time with his mother was enjoyable and that she gave him love and affection.  I suspect that there is nothing sinister in the fact that he had very positive feelings about his mother to the point that one could draw the conclusion it was because he wants to see more of her than he presently does.

1. The counsellor went on to conclude there was no doubt that both these parents loved B very much and he responded to them both in a very positive way.  She was however a little bit critical of the father, suggesting that he had limited the mother's contact with the child.  I must say in the range of cases where I have seen limited contact by a residence parent this case falls very much towards the bottom end of the spectrum. 

1. There was some criticism, which under cross‑examination did not really hold up too well, that the father was perhaps too much involved with his son.  There was some attempted explanation by the counsellor that, if he is controlling the time the mother has with the child, it might be because he has a fear of losing the child.  Such a fear would be totally understandable.  The father has taken on the role of raising his little boy through his infancy.  B is the most precious thing in his life and he obviously does not want to see his role diminished more than is consistent with the needs of the child. 

1. No doubt the father must be concerned that there is an “erosion principle” applicable here that might ultimately see the child moving away from him completely in the sense of he no longer being the primary caregiver.  This is something that many parents face in split relationships.  It does not always come about because there is anything deficient in the love and care and affection that they provide or that there is anything particularly consciously alluring in the other household.  It is just that there come times in many children's lives when they feel they need to move on.  Often the other parent is capable of providing something for the child that the child thinks it needs.  Such a move by the child is not always a reflection upon the parent from whom the child is moving away, but it no doubt causes anxiety in the residence parent. 

1. I think the counsellor is being a little ungenerous of the father in her description that he has been ungenerous of sharing his time with the child's mother.

1. The counsellor notes that the father has a status quo and has been the child's primary caregiver since January 2001 and she says that is significant.  Then she says:

“However, the counsellor can find no reason, other than the status quo, why B should not also reside with his mother on an equal basis.”

1. I asked her to explain why she concluded that and what she was talking about.  She indicated to me that she meant to convey her thoughts about parenting capacity rather than what was necessarily the most appropriate order for the child.  In other words, what I understand she was saying is that there was nothing about the parenting ability of either parent that would indicate why the one parent could not care for the child equally as well as the other parent. 

1. The explanation fits a little uncomfortably with the words she actually used on paper, but the counsellor had difficulties in explaining why an equal time-sharing arrangement was the best thing for this child, perhaps almost as much as counsel for the father had difficulties in explaining why it was not.

1. If one commences from some sort of presumption that it is good for children to spend equal time with their separated parents then the indicia in this case contradicting that presumption are mainly absent.  But I am not certain that it is a sound basis to start on and I will come back to that in a moment. 

1. The counsellor continued observing that whilst the couple were not able to communicate very effectively, they had been successful in keeping their feelings and disagreements away from their child and that this was commendable.  The counsellor suggested that if status quo was important a three weekends out of four, from Friday to Monday, might be appropriate plus sharing of school holidays and special occasions. 

1. The mother's proposal is simply that the best system to function would be seven days on and seven days off, presumably starting on a Friday after school and concluding the following Friday morning. 

1. The parties live close to each other both in rented accommodation.  The school is very close to where they live.  They each work full‑time and they each avail themselves of the child-minding facilities provided by the school both before and after school.

1. The mother works as a child care worker.  She can work either 7.45 am to 4.15 pm or 8.30 am to 5.00 pm.  She prefers the earlier shift to the later shift and this involves dropping B off at school before 7.30 am and then picking him up about 4.30 pm after her own workday concludes.  When B is on school holidays she has been able to take him with her to her place of employment. 

1. She gets four weeks annual leave plus some extra days around Christmas time and that effectively works out at five weeks, two of which she has to take around the Christmas break and the others she is able to negotiate with her employers.

1. The father's situation is similar.  He works from 8.30 am to 4 pm in a managerial position with a 45-minute travelling requirement so he has to drop the child off at a similar time to the mother and collect the child a little bit later perhaps in the afternoon than the mother.  There is not much in it.  He uses exactly the same arrangement as the mother with the school service. 

1. He has four weeks annual leave which he can take any time but last year the experience was the business closed down over the Christmas period so he had to take at least a couple of weeks of his holidays at a time when the mother would be forced to take hers.  That means that B does not get the maximum benefit of sharing his parents during their holiday period because the child will no doubt get 12 weeks' holiday a year and the parents between them at best get nine weeks of which two are going to overlap. 

1. So at best they could take seven weeks of B’s holidays and arrange their lives and there would still a five-week period when the child would have to be in some form of care basically during the holidays with the parents or an after-school program.

1. The father's proposal is to recognise the increasing significance and importance that the child places on spending time with his mother and to increase the periods either by increasing alternate weekends from Friday night through to Tuesday morning or even extending on one of those two alternate weekends to Wednesday morning and leaving intact a mid-week contact in the off week.  It seems to me, in terms of time sequence, Tuesday night would be the best arrangement for that. 

1. The father's present complaint is that the existing arrangement sees the child back at 8.30 at night which is too late.  My answer to that is perhaps to leave the child overnight until Wednesday morning which would overcome the sleep habit problems.

1. Two proposals are put forward, both of which are no doubt particularly attractive to those who are making them and both of which would no doubt ultimately work given the goodwill of the parents to date.  The advantage of the father's position is that it maintains a primacy of time with the child living in the household that has effectively been the only home the child has ever known.  It gives him certainty and the stability of some place he can recognise as home, whilst it increases the frequency of exposure to the mother. 

1. The advantage of the mother's proposal is that it is more predictable in the child's life to have one week on and one week off rather than four days on and five, six or seven days off with a day over with mum and then back again.  That is said to leave the child neither here nor there.  The counsellor is not really able to help me very much on the right answer in these proceedings, mainly because I do not think there is one. 

1. The decision-making process is governed by the matters set out in the Family Law Act 1975, particularly s 65E. I must regard the best interests of the child as the paramount consideration. Section 68F(2) sets out a series of factors I must give consideration to in determining how to come to a conclusion that places the best interests of the child as the paramount consideration.

·    The child is too young to express meaningful wishes on the particularly subtle issue that I have to determine.  The wish of the child is that his parents live together, otherwise his wish is to continue to be loved, cared for and nurtured by both of his parents.  I do not think the child has the understanding of the subtleties of the issue to require me to pay much attention to the wishes as gleaned by the counsellor.

·    I have already observed that each of the parents has a close, loving and appropriate relationship with the child. 

·    One would have to speculate on the likely effect of a change in the child's circumstance given that the child is doing sparklingly well under the present circumstances.  A change may be detrimental; it may not.  One would only know if one tried the change and measured the outcome.  Even then you would have no control to measure it against. 

·    There is no issue of practical difficulty and expense of contact. 

·    Each parent has the capacity to provide for the needs of the child.  There is some sort of underlying implication in the welfare report that perhaps the mother is better able to meet the child's emotional needs but I think that is being unfair to the father who has been the prime caregiver and raised a child about whom everybody speaks in flattering terms. 

·    There is nothing about the other aspects of s 68F(2) that are particularly likely to be decisive of the case. 

1. The law in this area is thin on the ground.  Cases from other jurisdictions are not of much assistance because of the confusion of terms.  There are many statements in the American law reports about “shared custody”, “joint custody” and the like but they are generally talking of something different.  They are talking of a principal obligation towards a child in making decisions for a child not on a day-to-day, moment-to-moment basis but in a broader sense.  Of course parents should remain responsible for their children.  But it is naive, I would have thought, to suggest that parents who cannot live with each other can really be expected to be cooperative in every aspect of their children's lives or to be wanting to be talking to each other about them.

1. It is joyful when it happens, joyful for the children who may not be able to feel comfortable and loved in a number of places but I think it is placing too high a burden on the expectations of parties who have been in an intimate relationship and no longer share whatever it was that kept them in that relationship.

1. One of the earliest cases to discuss “joint custody” was the Full Court decision in Foster (1977) FLC 90-281 where the Court said at 76,511 that:

“…The best interests of a child and the full promotion of his welfare are not generally served by orders for joint custody unless his parents have demonstrated that degree of maturity and such an ability to communicate and co-operate with each other as to give the court some confidence that the order for joint custody will be workable, or that, with assistance from the counselling services of this Court, it can be made workable.”

I caution about the application of that statement in that it may not ultimately be talking about a “shared parenting” arrangement, equal time or otherwise. 

1. The only reported decision I know of an actual equal shared parenting decision is one of my own in the case of H v H-K (1990) FLC 92-128 where I ordered the continuation of a weekabout arrangement for a four-year old. Many of the things I observed there are apposite to this case. I said there are some cases where shared parenting is the appropriate answer. Shared parenting does not necessarily involve equal time. It does involve significant time of both parents with the child.

1. H v H-K, in my view presented one of those rare occasions where a shared parenting order was more appropriate than sole custody.  It presented it because of the tender age of the child, the geographic proximity of the houses of each of the parties, the wife's mother being a focal point for both parties, particularly being friendly with the father and because the child has already learned in his tender years to accept such an arrangement and to function adequately under such an arrangement.

1. I said at 77,852:

“In my view, at least for the next two or three years, providing the geographic proximity remains the same, there is no reason to conclude other than the child will continue to prosper in such an arrangement.  Of course, as the child's education progresses and her needs to go into a more regimented regime of homework and continual supervision, such an arrangement may become inappropriate, but at least in my view, in the foreseeable future of this child's life, given that she has just turned four, this is one of those rare occasions where a sharing arrangement is appropriate.” 

1. The differences between H v H-K and this case is that there is no existing weekabout arrangement and the child is marginally older.  Otherwise there are many similar aspects to this child's life.  There is a common carer with the after-school arrangements, there is a geographic proximity and there has been a modicum of cooperation in the past between the parties. 

1. In Padgen (1991) FLC 92-231 Rowlands J declined to make a week-about order for a 13‑year‑old saying there had been a lack of mutual trust, cooperation and good communication which were the desired elements in the shared scheme.

1. In Forck v Thomas (1993) 92-372 the Chief Justice, speaking about an equal shared-time order said at 79,868:

“…At first glance, it might be assumed that spending roughly equal time with each parent is confusing for the child and leads to conflicts of loyalty.  This is how the issue has been considered in the well known book, “Beyond the Best Interests of the Child”, by Goldstein, Freud and Solnit (1973)...

Empirical studies find that such concerns are valid in some cases and not in others.  The reaction of children is highly individualised...”

1. His Honour then quoted from the American Journal of Orthopsychiatry saying:

“The most crucial and beneficial components of joint custody lie in the attitudes, values and behaviour of the parents.  The co-operative and respectful relationship between the parents for the purpose of child rearing and each parent's support of the child's relationship with the other parent seem to be more significant in helping the children to adjust than making sure that time the children spent with each parent was precisely equal.”

1. His Honour went on after discussing other writing by the social scientists to say:

“…it also must be appreciated that there is little in the way of longitudinal research and there are factors which seem to militate against the success of co-parenting.  Geographical proximity of the parents is an obvious practical consideration and interestingly enough, the re-partnering of one or both of the parents can de-stabilise joint arrangements by giving rise to powerful emotions and new obligations…

…

Perhaps more subtle and difficult, are matters such as the communication skills of the estranged parents, their ability to co-operate and the compatibility of their parenting values and styles.”

1. In H v H (1994) 19 Fam LR 165 the Chief Justice stated that if parenting values were not compatible mounting tension and mistrust between the parents might resulting in making a shared custody order unworkable and detrimental.

1. In another case, also named H v H (2003) FMCA Fam 41, Ryan FM set out a summary of the matters that she thought needed to be considered before making a shared parenting order.  She identified the following:

“•    The parties’ capacity to communicate on matters relevant to the child's welfare. 

·    The physical proximity of the two households. 

·    Are the homes sufficiently proximate that the child can maintain their friendships in both homes? 

·    The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment? 

·    Whether the parties agree or disagree on matters relevant to the child's day-to-day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern. 

·    Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise? 

·    Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extracurricular activities. 

·    Can they address on a continuing basis the practical considerations that arise when the child lives in two homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem? 

·    Whether or not the parties respect the other party as a parent. 

·    The child's wishes and the factors that influence those wishes. 

·    Where siblings live [and]

·    the child's age.” 

1. The Federal Magistrate pointed out that the list was not exhaustive and did no more than set out some usual elements the court would consider under s 68F(2).

1. How do I apply these principles to this case?  We are not coming off an existing equal sharing arrangement as was the position in H v H-K, although long ago and far away in the life of this child such an arrangement existed for a period of time.

1. The parties have had a fairly good record of communication, but the mother complains the father's phone is turned off.  The father complains that perhaps the mother does not take the same interest in matters that he takes.  There is no major parental difference in the ambitions they share for the child.  The homes are in appropriate physical proximity.  The development of relationships by the child with his peer group that eat into his recreation time is yet to play a major role in these proceedings. 

1. There has not been great evidence of compromise in many issues about timing with the child.  The mother has sought more time than the father has been interested in most of the time, although there have been times when the father says he has had to prompt the mother. 

1. It is yet to be known whether they will be able to work out the practical considerations of the child living in two homes, although on one view in either suggestion the child will be living in two homes.  I am merely determining the degree of to what extent the child lives in two homes. 

1. I am reluctant to embark on a straight equal time-sharing arrangement where that is not the existing arrangement and without some demonstrative evidence that it is going to advance the child when the child is already in a happy, satisfactory, warm environment.

1. At the moment there is nothing that I can see about B that cries out for a move to that position.  Clearly there are advantages in the logistics of fifty-fifty timing but B has done very well with his father.  Both parents are to be extremely commended for that.  At this stage of his life, although I am not sure at all that it would not work, I do not share the perspective taken by the counsellor that there is no good reason that contraindicates it.  I think that is starting from a base that I am not prepared to start from.  

1. I think it is important to understand that B has spent the majority of his life cared for by his father and that as significant and caring and loving and warm as his mother is in his life, so too has his father been.  It is sad that the parents are not together, but it is pleasing that they have so far raised a very happy little boy.

1. I do not want to be seen to be overly interfering in that situation.  I do not know whether the move that the mother proposes at this stage might interfere with the equilibrium.  I would be concerned if it did.

1. I think we ought be moving incrementally.  There may come a time when the child of his own volition is able to speak up and say, "This is what I want or this is what I need".  There may be a time when the parents themselves can evolve comfortably to that arrangement when they find something else too cumbersome.  It may be their work habits change and it becomes the best thing for B to be with the parent who is more available.  These things may or may not occur. 

1. In the meantime doing the best I can with sharing the child out as much as I can, but conscious that the child needs to mainly identify a particular place as home and that the child's present circumstance has been one where he has flourished, I propose to move to the non-equal sharing time arrangement but maximising as best I can, the time the child has with each parent. 

1. The father has put forward two proposals.  One was on a four-week cycle Friday to Tuesday week 1; Friday to Wednesday week 3 and with some prompting from me accepting Tuesday to Wednesday on weeks 2 and 4 and then half the school holidays.  The other proposal was to cut out the Wednesdays once a month and offer an extra week in the school holidays.  Of those two, the mother chooses the first proposal.

1. I think there is now a consensus about Christmas Day and school holidays and birthdays and the like.  If Mothers Day does not fall on a contact weekend, then arrangements should be made for the child to spend Mothers Day with his mother and, say, from Saturday to Sunday night.  Likewise if Fathers Day doesn't fall on a weekend when the child would otherwise be with the father, then the same arrangement should be made. 

1. As to the B’s birthday, I will assume each year this is going to fall during the school holidays.  That makes it easier in the sense that whoever has not got him on that day should provide some time for the other parent, if the parties do not otherwise agree - say, from after work until 7.30 for the non-possessing parent.

1. For my purposes in drawing up orders, I would like to see orders that just simply talk about shared residence other than for the short times.  If you have the child for 24 hours over Christmas or a bit of its birthday or something or Mothers Day or Fathers Day, that can be described as “contact”.  So whoever is the non-resident parent on that day gets contact but otherwise I think it is appropriate to describe what is happening is a residence issue so that the child resides with this parent on that time and with the other one the other time.

   I certify that the preceding 57 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
   The 30th day of July 2003
   
   Associate: