M & F
[2007] FMCAfam 276
•6 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & F | [2007] FMCAfam 276 |
| FAMILY LAW – Parenting – living arrangements – communication – developmentally and age appropriate arrangements – equal shared parental responsibility – sharing of time – staged arrangements – moving to equal time with each parent. |
| Family Law Act 1975, ss.60B, 60CA , 60CC, 61DA, 65DAA |
| C & B [2005] FamCA 94 |
| Applicant: | K L M |
| Respondent: | T C F |
| File Number: | CAM 767 of 2005 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 8 December 2005 and 21 March 2006 |
| Date of last submissions: | 8 August 2006 |
| Delivered at: | Canberra |
| Delivered on: | 6 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr George Brzostowski SC |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Mr Ian Nash |
| Solicitors for the Respondent: | Crowley Clifford Simpson |
ORDERS
The parents have equal shared parental responsibility for the children, E born in April 1999 and T born in October 2002.
During school terms the children live with the father as follows:
(a)Until the beginning of term 4 in 2007
(i)each Tuesday from after school until 6.00 p.m Thursday
(ii)each alternate weekend from after school Friday until 6.00 p.m on Sunday (or Monday if a public holiday)
(b)From the beginning of term 4 in 2007 to the beginning of term 2 in 2008
(i)each Tuesday from after school until 6.00 p.m Thursday
(ii)each alternate weekend from after school Friday until the beginning of school Monday (or Tuesday if Monday is a public holiday)
(c)From the beginning of term 2 in 2008 to the beginning of term 1 in 2009
(i)after school Wednesday to the beginning of school Monday in week 1
(ii)after school Wednesday to the beginning of school Friday in week 2
(d)From the beginning of term 1 in 2009, every second week with the changeover days to be agreed between the parties.
During the Christmas school holidays in 2007 the children live with the father for three alternate week blocks, with the first block beginning at 6.00 p.m on the second Saturday until 6.00 p.m on the following Saturday.
For all other school holidays, including Christmas holidays from 2008, the children live with the father for the second half of the school holidays in odd years and the first half of the school holidays in even years commencing from 6.00 p.m Saturday until 6.00 p.m on the concluding Saturday.
The children live with the mother at all times other than those set out in Orders 2, 3 and 4.
The children spend time, as agreed between the parties, with the relevant parent if they are not living with that parent on the mother’s birthday, the father’s birthday, the children’s birthdays, Mother’s Day, Father’s Day and Christmas Day.
The father collect the children from either their school or the mother’s home at the commencement of the time they live with him and the mother collect the children from their school or the father’s home at the commencement of the time they live with her.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 767 of 2005
| K L M |
Applicant
And
| T C F |
Respondent
REASONS FOR JUDGMENT
K L M and T C F have two children. E was born in April 1999 and is now eight years old. T was born in October 2002 and is four and three quarters. They have lived principally with their mother since the parents separated in December 2002, although they have had significant time with their father.
The mother’s application is for the children to live with her. She proposes that during school terms the children spend one night each week and alternate weekends with the father. During school holidays in 2005 and 2006 – this matter was heard in 2005 and then 2006 – she suggested two periods of three consecutive nights, and half holidays from 2007.
The mother contended that this was “developmentally” and age appropriate for the children, in particular T. The mother does not oppose in principle the children eventually spending equal time with their father. The issue is “one of timing and appropriateness of any introduction of that regime”.
The father proposes a gradual increase in time with him leading to equal time when the children would spend seven nights a fortnight with him. From late in 2007 this would comprise Wednesday to Monday in one week and Wednesday to Friday in the other. He had suggested that until July 2006 the children live with him from Tuesday to Thursday each week and each alternate weekend from Friday until Sunday. From July 2006 he proposed that Sunday night be added to the alternate weekend time. He also seeks half school holidays, with three weekly blocks during the Christmas holidays.
For the reasons below I have decided on a staged arrangement which will lead to equal time with each parent.
Background
The mother was born in 1970 and is now 37 years old. The father was born in 1967 and is almost 40. They commenced living together in 1993, were married in March 1997 and separated in December 2002. They were divorced in September 2005, having consented to property orders in October 2003.
Their daughter E was born in April 1999 and their son T in October 2002.
The mother has re-partnered to M D with whom she lives. M D’s son, who is about 16, lives with them on a week about arrangement.
The father married T S in late 2005 having resided with her since early 2004. T S has a child, A who is about seven. A spends time with his father every second weekend.
At separation E was about three years and eight months and T two months. They have lived with the mother since that time. There is no dispute about the broad details of the living arrangements for the two children after separation:
·initially the children went to the father’s house on Saturday with T returning later in the day but E staying overnight
·each Monday, Tuesday, Wednesday, Thursday and Friday evening the father would attend the mother’s house to participate for one or two hours in the children’s bathing and bedtime routine
·the father took two months off work in November and December 2003 when the mother returned to full-time work. He cared for the children full-time during the day
·in January 2004 the father changed his work commitments so that he could take each Thursday off to care for the children
·from April 2004 E commenced having two nights a week – Wednesday and Sunday – and T Wednesday nights with their father. He would also care for them each Thursday
·in January 2005 both children started two nights – each Wednesday and Saturday - with the father
·the weekday evenings developed into Monday and Tuesday evenings once the children began to stay with the father on Wednesday nights and during the next day. The mother requested Friday evening for herself and she took Friday off work. This evening contact continued until the incidents around ANZAC Day in 2005 which are discussed below.
The interim orders made in this Court in June 2005 retained the Wednesday night Thursday arrangement. However the weekends were changed from every Saturday night to Sunday afternoon to every second Friday to Sunday afternoon.
Holiday time with the father since the June 2005 orders has included:
·five consecutive nights in July 2005
·five consecutive nights in the September 2005 school holidays
·blocks of three, four and five consecutive nights in the Christmas 2005 holidays
·orders providing for two, three and five day blocks in April 2006
·orders providing for two, six and seven day blocks in the Christmas 2006 holidays.
The mother employs a babysitter, L, to care for E after school on Mondays and Tuesdays. L also cares for T on those days. He attends a childcare centre on Wednesdays, his father looks after him on Thursdays and his mother does likewise on Fridays.
Issues
The major areas of contention which have arisen in this case relate to:
·a series of incidents which the mother says underlie her concerns about the father’s behaviour
·communication between the parties
·what arrangements are developmentally and age appropriate for T.
Both parties accept that E is ready to spend equal time with her parents but that the two children should not be separated.
Some incidents
In her evidence the mother testifies to a number of incidents which underlie her concerns about the father’s behaviour and in her view tell against too quick a move to T spending equal time with the father.
December 2004-January 2005 “agreement”
The father says that in December 2004 he proposed a number of phased in increases in the time he spends with the children. The discussions at that time led to the January 2005 increases. He asserts that they both agreed that after her April birthday they would discuss the proposals for E going to three days a week and would discuss in December 2005 something similar for T. As previous discussions had been tense, in January 2005 he proposed that these future discussions take place at Relationships Australia. They attended in April but no agreement was reached on specific arrangements.
It is the father’s evidence that they had agreed on the changes. The discussions were to be about the logistics of moving to the new arrangements.
The mother on the other hand is adamant that there was no agreement in December 2004-January 2005 to increase the times in April 2005 and December 2005. The agreement was rather to discuss in April for E and in December for T whether to increase their time with their father. It went to the substantive issues not just logistics of a change already accepted.
From the evidence it seems that the parties have quite different and inconsistent understandings of what was agreed in December 2004-January 2005. The father says that there had been a decision to increase the time with him, with implementation issues still to be resolved later. The mother says it was just an agreement to discuss later in 2005 whether to increase the time.
ANZAC Day 2005
In her principal affidavit affirmed on 21 November 2005 the mother said at [20]:
On Monday 25 April 2005 (ANZAC Day holiday) at 9am I attended T C F’s house to deliver the children for a pre-arranged contact visit. During the car trip T was crying and upset. T continued to cry as I collected him from the car and walked towards the house with him and E. At the door, T C F’s partner T S approached me and said words to the effect of “Transitions are difficult for small children.” T S then removed T from my arms, without any consultation with me, and walked into the house. I followed her and said to T C F “I am very unhappy about what happened. Could I please speak to you away from the children.” The children were present and aware that I was very upset. I said “I will take the children home.” I decided not to do that after a short and very uncomfortable conversation with T C F at a distance from the children. I said to T C F “I do not want transitions to happen like this in the future.”
The father’s version of the ANZAC Day events has a different emphasis. He agreed that T appeared slightly anxious when he arrived. After T S took T he ran inside and out the back to ride his bike. Having demanded an apology the mother left the house and began to return to her car. The father says the mother then came back through the house and angrily confronted him in front of both the children. The mother said she was taking the children away, began to follow them but then left. Under cross-examination the mother agreed substantially with the father’s version of that day’s events, including that she made the threat in front of the children to take them away.
The next day the father sent a four page e-mail to the mother. Among other things he stated that he believed that it was in the children’s interests to spend more time at his house and with his family, moving to seven nights a fortnight over the next couple of years. He asserted that the mother did not want to engage in constructive dialogue about the contact arrangements. Her views about the ability of the children to cope were a screen for her real concern that any reduction in time would put her relationship with the children “under even greater threat”. The father criticised some of her actions, in particular those on ANZAC Day including her threat to take the children away.
The e-mail went on to set out how the father intended to proceed. He proposed to draft arrangements for increased contact leading to shared care over 1-2 years which he would put to psychologist Sue Connor “to confirm it is reasonable from the perspective of the children”. This would be sent to the mother. If she did not agree “or come up with a reasonable alternative over the next 2-3 weeks” he would file an application in the Court. The father was happy to arrange a joint session with Ms Connor.
Later that day the mother e-mailed the father apologising for arguing in front of the children. However she instructed the father not to come to her home that evening and advised that he was no longer welcome at her home. She thus effectively ended the time the father had with the children every Monday and Tuesday evenings.
Despite the mother’s e-mail the father was at her home when she arrived from work at about 6 pm that evening. The children’s carer, L, was with the children prior to the father’s arrival. The father says that he went to the mother’s as he did not want to break the existing bedtime routine without having the opportunity to explain the change to the children, especially E. In response to E’s question why he was leaving before the usual time, he said the mother had asked him to. He had earlier explained that until things were sorted out he would not be coming in the evenings. He did not attend the mother’s home after April 2005.
The two versions of events for 25-26 April 2005 are not substantially different. To the extent to which they differ I accept the father’s version with which the mother substantially agreed under cross-examination. Both parents regard these incidents as regrettable, involving stressful encounters and some distress for the children. It was a low point which both agree in hindsight should have been handled differently.
9-10 May 2005
The mother was also upset by some events on 9-10 May 2005. She says that on 9 May 2005 contrary to her written and verbal request, the father collected E from school and also removed T from the care of his babysitter. They were returned to the mother at 6 pm. The father’s action made E tearful and distressed when back with her mother, although the mother did not doubt that the children were perfectly happy when with the father. The mother accepts that E enjoys being with both parents.
The next day was Federal budget day and the mother was involved in the budget media lock-up. She sent an e-mail to the father telling him not to repeat the previous day’s actions. The father was to take E to the dentist at 11.45 am for removal of two teeth and the mother wanted her returned to the babysitter’s care by 5 pm. But the father kept E until shortly after 7.30 pm when the mother was to return home. The mother’s rationale for her instructions was that she wanted to keep the children’s arrangements as close to normal as possible.
The father says that he took Monday and Tuesday 9 and 10 May 2005 off from work to spend some time with the children at his home in the afternoon. But the mother refused his request, apart from allowing him to take E to the dentist. She wanted the children cared for by the babysitter. The father considered the mother’s refusal unreasonable and consulted his lawyer before seeing the children. The children were happy and appeared to enjoy the time with him. The father insisted that E was not upset. They were returned to the mother when she was available after her work commitments. The father also kept the mother informed of what he was doing.
24 May 05
The mother was also concerned by action of the father on Tuesday
24 May 2005. She says that she received a telephone call from her babysitter, L, reporting that the father had attended the school and removed E and T from her care. The mother collected the children from the father’s home later that evening after work. E appeared anxious and burst into tears. The mother was angry that the longstanding arrangements for the children to be minded by L were altered.
The father’s explanation was that he was becoming increasingly frustrated that the mother was prepared to leave the children with a paid caregiver on Monday and Tuesday evenings, rather than permitting him to have time with them. He contacted the mother to let her know the two children would be ready for her on her way home. E and T were happy and enjoyed their time with him.
Constant pressure and e-mail traffic from father
One of the mother’s complaints concerns “T C F’s constant pressure to vary the arrangements for the children” which she found “very difficult, bordering on obsessive. No sooner do we reach agreement as to one aspect than T C F is submitting further changes.” She complains of the overwhelming number of proposals on contact put to her by the father. She instances receiving 77 e-mails from the father between January and June 2005, 47 on contact matters and 30 on more routine children’s matters.
But as the mother agreed they had decided to communicate in writing by e-mail as telephone conversations were difficult. She also accepted that some of the e-mails on issues parents have to discuss about care of children were constructive, providing real dialogue. Others were more argumentative reflecting the state of conflict between the parents. Further as the father has pointed out 77 e-mails over five months is less than four a week.
Other communications incidents
Christmas 2005 The mother raised as an example of poor communications the father’s apparent back down from the arrangements for Christmas 2005 holidays. She said the parties had previously reached an agreement for this period. This agreement was not in the amended response subsequently filed by the father. But it was also not reflected in the minute of orders sought by the mother, although her affidavit referred to agreement having been reached for the Christmas holiday arrangements.
The father noted in his affidavit that the parties had been able to reach direct agreement between themselves for the Christmas holiday contact. This occurred after a number of meetings and exchange of e-mails in November 2005. Under cross-examination the father maintained that the agreement was in principle. The mother was to run it past her solicitor who was to confirm it in writing. The father chased it up a couple of times and the mother explained that the solicitor was busy. The mother then filed the orders she sought including holiday contact. On advice from his lawyer the father then continued with his response which was different from the earlier agreement.
The mother contended that this was another example of the inability of the two to communicate. The father unilaterally changed the proposal. The father disputed this as the agreement still had not been completed, the mother having not confirmed it. He accepted however that “the communication didn’t work” on this occasion.
Notwithstanding the dispute over whether the original Christmas agreement had been confirmed that agreement was implemented. The handovers all took place in accordance with the plans and there were no problems. T was not distressed in any way. The father and his partner also took the children to a party at the mother’s sister’s house in Sydney during this period.
E’s 2006 birthday party The mother also gives the organisation of E’s party for April 2006 as another example where communication between the parties failed. The mother sent a text message to the father about failure to discuss the theme for the party and about the invitations. Consequentially in “a gentle and non-combative way, [the mother] raised some issues in relation to that”.
The father acknowledged that they had exchanged messages about the party. They agreed on a repeat of the previous year where he would look after the entertainment and invitations and the mother the catering. He had asked the mother for suggestions for invitations. They had discussed it at changeover and he had also sent her an e-mail. It was E who made the decision on the theme and then the father said he discussed the logistics with the mother. The mother had not been given a copy of the invitations which had been handed out by E at school in accordance with accepted practice. The father did not accept that the series of exchanges on this issue showed that communication was ineffective.
Communication
As already noted it is the mother’s position that communication between the parties is an issue of major significance. This was particularly the case since the 2005 ANZAC Day events, although there had been some settling after proceedings were filed in May 2005 and the interim hearing in June 2005. The ANZAC Day incidents brought with them a deterioration in trust, respect and ability to agree.
The mother says that the parties are only able to communicate about “simple every day matters and that sometimes even those matters are a source of dispute.” It is too optimistic to say the parties communicate effectively. Mr Nash for the mother described it in opening submissions as follows:
It is a tortured process, it is difficult, it takes a long time, and on a lot of occasions agreement does not result, or if it does, there are changes subsequently made by unilateral action, on largely, we say, his part, subsequent to those agreements, which makes reliance on them difficult.
The mother believes that the father has unreal ideas about communication. For example he described an e-mail as constructive despite accusing her of lying and dodging and using her concerns about the ability of the children to cope as a screen for her insecurity in her relationship with the children. To suggest such an e-mail was constructive was “not only unreal but evasive and unhelpful.”
Other examples of the parties’ inability to communicate, according to the mother, include:
·the need to call on Relationships Australia to assist in working out the logistics for increased contact
·the differing and inconsistent understandings of the December 2004-January 2005 agreement
·the father’s description of his and the mother’s relationship as “fraught” and the mother’s view that it was “fundamentally damaged”
·the more recent differences over E’s 2006 birthday party.
The mother says that the various e-mails annexed to the affidavits “contain no more than exchanges of quite differing, irreconcilable view points between the parties and do not amount to any meaningful sort of communication at all.” At best there is “a poor exchange of unilateral views about the children’s needs.”
The father disputes the mother’s position that communication between them is very poor, even though he accepts that there have been times where it has broken down. He instances various SMS messages which demonstrate that the parties can communicate on day-to-day matters to implement arrangements for the children. In matters “of logistics, co-ordination, of arrivals, drop-offs, collection, collection of items forgotten, etc the parties will be able to act in a reasonably co-operative manner.” The parties have demonstrated a capacity to communicate and co-operate, particularly before litigation commenced. Since that time they have been able to co-operate for things such as children’s parties.
In the father’s view there is no requirement that it be so cordial that the parties feel relaxed as if there had been no breakdown in the relationship. What matters is that there is a means of adequate communication: “communication does not only occur when there is agreement.”
The father asserts that once the court proceedings have been resolved there is no reason to doubt that the parties will set about implementing the terms of the orders “with all proper due cordiality and diligence.” In response to questions from me, the father pointed to a wide range of matters where the parties do communicate, including:
·day to day matters about school events
·need for medication or visits to a medical practitioner
·singing concerts or play dates
·organising for the children to see family members coming to town
·handover and pickup arrangements.
The parents meet six or seven times a fortnight at handovers and in the schoolyard. Handovers are not “distant” and the parents often spend time talking in the other’s home, although this is not always stress free.
In her oral evidence the family reporter, Ms Pam Connor, agreed that an ability to communicate between the parents without denigration or lack of respect would be necessary to make shared care work. She said it would be optimal if there were more than just an exchanging of views; rather an engaging in dialogue to try and identify and resolve problems. Communication on day to day management was basic. Anything over that would make the parenting better.
Ms Connor said:
If I could say that my perceptions of the parents is that they both have the capacity to communicate very effectively with one another, and for the future they certainly have that capacity, if they both saw the importance of that.
She agreed that they had done pretty well up until the time of her report.
Further the following exchange occurred in response to my questions:
FM MOWBRAY: Did you glean anything about their respect and commitment to any particular regimes, and how they might operate if they were implemented?
MS CONNOR: My perception was that they would work together really well. They managed to do that through very difficult times previously, despite the whole lot of other things that were going on in their own relationship. And I imagine that that will happen again in the future, and that this Court process has probably made the situation a little bit less ideal, I suppose, communication wise, that it otherwise might be. And I guess that is a speculative comment. But based on what I heard in interviewing the parents, both were very positive about one another and about each other’s parenting style, both were very committed do doing what was the best, and in the best interests of the child. And so I don’t think that those aspects would have changed at all, in either of them. And that those factors will motivate their parenting in the future. That is my belief. I believe that they will work together at a higher level of communication, and maybe they are only communicating at the moment at a fairly basic level, but that that will change.
FM MOWBRAY: I must say that my reading of these documents and affidavits, and I have seen the parents in the witness stand, and comparing them with other people I have seen, suggests something similar to what you have just said, that although obviously in some of these matters we tend to focus on some of the negatives, these parents do have the interests of the children at heart, rather, as quite often the case, the interests of their own particular interests. Is that a perception that you –
MS CONNOR: Yes, your Honour.
Mr Nash for the mother contested the value of this evidence as speculative. Ms Connor had not had any information since writing her report, nor had she seen the e-mails tendered by the two parties.
However, in my view the mother’s concerns about poor communication are very much overstated. I have read all the affidavit material, observed the parents give oral evidence and had access to all the e-mail traffic, unlike Ms Connor. Having done so I am firmly of the opinion that Ms Connor’s conclusion reported above is correct. In my view:
·the parents have worked and communicated well in the past
·that does not mean that they have always agreed, or that there has been no stress or breakdowns
·various incidents instanced by the mother are more isolated than regular, in the main not major, and do not suggest an ongoing breakdown in communication
·in my experience communication between these two parents is vastly better than in most matters before the Court.
Developmentally and age appropriate arrangements – the Family Report
Ms Pam Connor, a registered psychologist, prepared a carefully considered and constructive if lengthy family report in November 2005. Her assessment included the following:
·there are no personality or psychological factors which would preclude either parent or their partners from having a close involvement in either of the children’s lives
·both children have close and positive relationships with both parents and appear to be securely attached to them. They also have comfortable relationships with the parents’ partners
·both parents have an excellent understanding of the emotional, intellectual, social and physical needs of the children. They have also demonstrated a capacity to separate their own needs from those of their own children and to give priority to their children’s needs
·both parents encourage and facilitate contact and the children’s relationship with the other party
·it is unlikely that the father’s proposals would have any negative impact on E, who appears to be “emotionally mature”, securely attached to both parents, and happy in both parents’ home environments. E is managing well the current arrangements and would be able to cope with the increases in time originally suggested by the father
·there is strong research support for overnight stays for a child of T’s age. Claimed long term negative effects for a child from lengthy separation from a resident parent did not apply where the child has formed a close attachment to the non-resident as here
·T may experience difficulties with lengthy separation from both parents, not just his mother. Thus reduction in time spent apart from his father is an important goal, but this must be gradual and developmentally and age appropriate
·most pre-school children become stressed and unnecessarily overwhelmed by separations from either parent that last more than 3 or 4 days
·the presence of older siblings can influence the extent to which younger children manage separation from a significant attachment figure
·in this case there are a number of factors that require consideration of the father’s original proposals which involved a faster move to shared care: T’s secure attachment to his father in whose home he is happy and comfortable; the presence with him of his older sibling, E; the demonstrated capacity of the parents to separate their own needs from the children and to place the children’s needs first
·she noted the mother’s concerns that T may still have some underlying uncertainties about being away from her reflected in his clingy behaviour when he returns, thus suggesting caution in any recommendation to increase separation.
Ms Connor’s recommendations were made with an attempt to satisfy a number of in some cases competing priorities:
· gradually increasing T’s contact period with his father, in a developmentally and age-appropriate manner;
· ensuring that the sibling relationship remains intact;
· reducing the number of transitions between the two homes for both children;
· ensuring that T’s absences from either parent are not too lengthy; and
· ensuring that the children are able to spend week-end times with each of their parents.
In summary Ms Connor’s recommendations in November 2005 were:
·although E was developmentally ready to have longer stays with her father, she and T should not be separated but move between the two homes at the same time
·an extra one night a fortnight immediately for the children with the father, being alternate Thursday nights providing a two night block in week 1
·once T was about three and a half, the children have Tuesday night with the father in week 2 instead of Wednesday night, and from Friday night until Monday morning in week 2
·thus over a period of approximately six months T’s stays with his father would increase by two nights
·the next increase to four consecutive nights not to occur until T was four and a half – the middle of 2007 – when T would be well settled into pre-school
·any move to a five night block be implemented when T is five – either in the months prior to commencing school in 2008 or a few months after
·moving to week-about blocks once T is settled into school.
Ms Connor gave oral evidence some four months after her report. Under cross-examination she emphasised the need for caution when recommending any increases in the period T was separated from his mother. She would err on the side of caution. However having had brought to her attention recent holiday blocks T had spent away from his mother, Ms Connor suggested some variations to the recommendations in her report. Although they were not completely clear, her new proposals appear to be:
·an extra night/day each week being Tuesday and Wednesday of each week commencing immediately
·continuation of the alternate weekend arrangements
·increasing the alternate weekend contact to include Sunday night no less than six months later to achieve seven days a fortnight
·during T’s preschool year in 2007 the commencement of a four night block
·once T is really settled into school in 2008 moving to a block of five nights including the weekend and two consecutive nights in the other week
·moving to week about at a time determined by how T gets on with the five night blocks.
Ms Connor emphasised that the parents should implement these proposals flexibly, sensitive to how T is coping with the changed arrangements. If the changes are working well and there do not appear to be adverse signs from T they could progress to the next stage.
The children’s best interests – section 60CC factors
Section 60CA of the Family Law Act 1975 makes clear that in deciding whether to make a particular parenting order the Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets a range of matters which the Court is bound to consider in determining what is in a child’s best interests. Section 60CC(2) contains two primary considerations and s.60CC(3) a series of additional considerations. As is often the case some of these matters are not relevant and I will not say anything more on them. Others on which there is no dispute will be briefly discussed. Further neither party disputes that E is ready to spend more time with her father. As it is proposed that she and T should not be separated, the question revolves around the arrangements which are suitable for T.
From the evidence both children presently benefit from a meaningful relationship with each parent (s.60CC(2)(a)). This will continue if the Court accepts the proposals of either of the parents. Whether the time the father proposes T should live with him will enhance that relationship will be considered with the other factors below.
Protection of the children from harm or violence is not an issue in this case (ss.60CC(2)(b) and 60CC(3)(j) and (k)), neither are T’s views given his age (s.60CC(3)(a)).
There is no doubt that each child has an excellent relationship with each parent. There is no suggestion of any fear, discomfort or danger. Similarly the relationships with step-parents and step siblings are good (s.60CC(3)(b)).
There is also no question that the parents have managed to achieve a close and continuing relationship for the children with the other parent (s.60CC(3)(c); also s.60CC(3)(i) on attitude to the children and the responsibilities of parenthood).
However the father has raised what he sees as the mother’s “consistent level of resistance” to his endeavours to progressively expand the time T spends with him. He says that she “has always resisted any increase in the time the children eventually end up spending with” him.
On the other hand the mother describes the father as “pushy’. He is not mindful of the sensitivities of T’s young age. He seeks more time with T without having regard to T’s age, state of development and preparedness for such contact.
The mother also asserts that the father shows no respect for her and for her views. She instances unilateral actions taken by him, referred to earlier, expressly against her wishes. She also points to some of the strong comments in his e-mails.
It is in my view somewhat harsh to describe the father as “pushy” and disrespectful of the mother. He may have shown some insensitivity to the mother in pursuing suggestions which he thought had merit. But he also proposed that these suggestions be vetted by a child psychologist. His disregard for her wishes while regrettable was understandable in the circumstances.
It is probably equally unfair to cast the mother as a villain in resisting increases in contact time with the father. While I think that she has been overprotective of T in circumstances where he is very well cared for by his father, I accept that in the main she had what she believed his best interests in mind.
This case involves two highly dedicated parents, with excellent attitudes to the children and the responsibilities of parenthood. I have little doubt that they will each continue to foster close and continuing relationships with the other parent, particularly once the matter is no longer in the courts.
The mother’s major concern has been the likely effect on T of too rapid a move to increased time with the father (s.60CC(3)(d)). She has insisted any change to shared parenting be “developmentally” and “age” appropriate. She suggested that T does not react well to change and misses her if he is separated from her for long periods.
The father does not contest the need for changes to be appropriate for T’s circumstances. Indeed he does not seek immediate half shared care. Nevertheless he disagrees with the mother on how T reacts to change. It has not been his experience that T is distressed by longer periods away from his mother.
Ms Pam Connor, the psychologist who prepared the family report, agreed that any increases in time should be based on T’s developmental and age needs and exercised with some caution. They should be implemented flexibly, sensitive to how T is coping with the changes.
While I agree generally with Ms Connor, I note that T has already had longer breaks from his mother without any significant adverse consequences. T has had considerable time with his father right from the start of his life. He has had much time away from his mother who is certainly not his sole attachment figure.
There is no doubt that both parents have the capacity, and willingness, to provide for the emotional, intellectual and other needs of E and T (s.60CC(3)(f)).
I have considered the maturity issue relating to T (s.60CC(3)(g)) above in dealing with likely effects of separation. I agree with the father that capacity of each child to stay away from the mother for longer periods has been demonstrated:
They have both enjoyed such times with the father. They have both had the benefit of father’s input into their lives. It simply cannot be doubted that the father has an admirable devotion to these children. There is no reason why this should not happen to the maximum extent possible.
The orders which I propose in moving to equal time will I trust minimise the possibility of future proceedings (s.60CC(3)(l)). Given their devotion to the children, and the goodwill and commonsense of the two parents, I would expect that they would look to the future once these proceedings are concluded.
Equal shared parental responsibility
This is a case where there is absolutely no reason why the presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility should not apply (s.61DA). Both parents accept this.
Sharing of time
As I propose to make an order for equal shared parental responsibility I must consider whether the children should spend equal time with each of the parents or substantial and significant time (ss.65DAA(1) and (2)).
The father wishes to move to equal time as soon as possible. The mother appears to accept that equal time is desirable eventually. The issue is “one of timing and appropriateness of any introduction of that regime”. The orders she seeks do not provide for equal time.
Having regard to the evidence before me and the s.60CC factors, I am more than satisfied that an immediate increase in time with the father moving in stages to an equal time regime is in the children’s best interests. A modified version of Ms Connor’s proposals should be implemented. What I propose is consistent with Ms Connor’s views on what is developmentally and age appropriate.
In my view it would not be in T’s best interests to move to equal time immediately, especially week about arrangements. This is essentially for the reasons given by Ms Connor, particularly his age and stage of development. But this move should be faster than proposed by the mother because of:
·T’s secure attachment to his father
·T feeling comfortable and happy in his father’s home
·the presence of his sister, E, with him during this time
·the demonstrated capacity of the parents to put the children’s needs first.
I do not think that the communication difficulties asserted by the mother would make the arrangements I propose impracticable (see ss.65DAA(1)(b), (2)(d) and (5)(c)). I have already noted that I regard the mother’s concerns about poor communication to be overstated. Furthermore in C & B [2005] FamCA 94 at [68] Bryant CJ decided that “[n]otwithstanding the hostility between the parties and their lack of communication” the child should spend equal time with each parent.
The arrangements I intend to set in place for the children to live with the father during school terms are:
·commencing immediately an extra night/day each week being Tuesday and Wednesday each week with continuation of alternate weekends – giving three blocks of two nights totalling six nights each fortnight
·from the beginning of term 4 in 2007 extending the alternate weekend to include Sunday night – thus seven nights a fortnight
·from the beginning of term 2 in 2008 five nights Wednesday to Monday in week 1 and two nights Wednesday to Friday in week 2
·from the beginning of term 1 in 2009 a week about arrangement.
In view of the past school holiday arrangements, I believe that T can cope with half holiday blocks away from his mother immediately, with the exception of the 2007 Christmas holidays. For these holidays I propose alternate week blocks.
Ms Connor has stated that the changes especially the school term ones will need to be implemented sensitively. I am confident that the parents will do so.
Conclusions
In this matter the principal issues turn on communication between the parties and the implementation of developmentally and age appropriate arrangements for the two children. The mother raised also a series of incidents which she said mitigated against a shared parenting arrangement involving equal time. She says that essential elements of communication, respect between the parties and commitment by each party to whatever regime of parental care is imposed are so lacking that there must be real doubt about the long term viability of any shared care arrangement.
The evidence of all witnesses, but particularly that of the psychologist and family reporter, does not support the mother’s contentions. The mother has made too much of the incidents and overstated the communications difficulties. I have no doubt that the mother is genuine. Her views are entirely understandable. However in my view she is over protective and somewhat inflexible. T appears to have coped well with the changes to date.
Both parents are highly intelligent and able. Their love for their children is unquestioned. They have demonstrated that they are capable of working together and are prepared to put the children’s interests first. There have been difficulties as there always are in parenting children in two households. I have little doubt however that once these proceedings are over the parents will move forward.
I have decided that it is in the best interests of the two children for them to spend equal time with each of the parents as soon as this is developmentally appropriate for T. This should not initially be in seven day blocks but in two two day blocks and one three day block commencing from term 4 this year just after T turns five. There will then be a staged increase with seven night blocks starting in 2009. For term 3 this year there should be an extra night each week, giving three two day blocks a fortnight.
I have also decided that T is ready for half holiday blocks with each parent, except for 2007 Christmas holidays during which he should have three seven day blocks with each parent. From then on including Christmas, the half holiday block regime will apply.
I note that these arrangements have been determined specifically with T’s needs in mind as he is only four. All the evidence suggests that E who is eight is ready for equal shared time. Both parties accepted that the two children should not be separated. I agree.
The first object in s.60B(1) of the Act involves “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child”. This is an eminently suitable case for moving to equal time no later than suggested by the family reporter. I have slightly altered her proposals to take into account the time since she gave evidence. The orders also clearly give effect to the legislative intention underlying the shared parenting amendments to the Act which commenced a year ago.
I am satisfied that the orders set out at the commencement of these reasons are in the best interest of E and T. I accordingly make those orders.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Hal Tilemann
Date: 6 July 2007
0