MACARIS & RADDACH
[2019] FCCA 1632
•14 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACARIS & RADDACH | [2019] FCCA 1632 |
| Catchwords: HELD – Orders made for the parties to have equal shared parental responsibility for the children, for the children to live with the Mother and spend time with the Father on his rostered days off as per his rolling four/four roster – orders made for the children to spend time with the Father during their school holiday periods. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MS MACARIS |
| Respondent: | MR RADDACH |
| File Number: | MLC 5996 of 2018 |
| Judgment of: | Judge Bender |
| Hearing date: | 14 March 2019 |
| Date of Last Submission: | 15 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 14 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | JH Legal |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Pearsons Lawyers |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children Y born 2009 (“Y”) and X born 2013 (“X”).
Y and X live with the Father as follows:
During school term
(a)from the conclusion of school (or 9:00am if not a school day) on the first day following the conclusion of the Father’s roster until 7:00pm on the day prior to the commencement of the Father’s roster;
During term school holidays
(b)for half of all school term holidays as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;
During long summer holidays
(c)during the long summer holiday period as agreed and failing agreement as follows:
(i)on a week about basis until X turns nine years of age:
A. commencing the first week in even numbered years and each alternate week thereafter; and
B. commencing the second week in odd numbered years and each alternate week thereafter;
(ii)after X turns nine years of age (and to avoid confusion, commencing the long summer holidays 2022/2023):
A. for half the school holidays as agreed between the parties and failing agreement, for the first half in 2022/2023 and each alternate year thereafter and the second half in 2023/2024 and each alternate year thereafter;
(d)at Christmas:
(i)from 12:00 noon on 24 December until 12:00 noon on 25 December in odd numbered years; and
(ii)from 12:00 noon on 25 December until 12:00 noon on 26 December in even numbered years;
(e)on each of Y, X and the Father’s birthdays if not with the Father pursuant to these orders, as follows:
(i)if the birthday falls on a school day for not less than two hours as agreed and failing agreement as nominated by the Father not less than 14 days prior to the birthday; and
(ii)if the birthday falls on a non- school day for not less than four hours and failing agreement as nominated by the Father not less than 14 days prior to the birthday; and
(f)at such other times as agreed between the parties.
Y and X live with the Mother at all other times and including the following:
(a)on the Mother’s Day weekend from 6:00pm on the Saturday prior to Mother’s Day until the commencement of school on the Monday following Mother’s Day;
(b)at Christmas:
(i)from 12:00 noon on 24 December until 12:00 noon on 25 December in even numbered years; and
(ii)from 12:00 noon on 25 December until 12:00 noon on 26 December in odd numbered years;
(c)on Y, X and the Mother’s birthday if not living with the Mother pursuant to these orders:
(i)if the birthday falls on a school day for not less than two hours as agreed and failing agreement as nominated by the Mother not less than 14 days prior to the birthday; and
(ii)if the birthday falls on a non-school day for not less than four hours and failing agreement as nominated by the Mother not less than 14 days prior to the birthday; and
(d)as otherwise agreed between the parties.
For the purposes of telephone time between Y, X and each of the parties, the parties shall facilitate Y and/or X telephoning the other parent between 6:30pm and 7:00pm on every second night that Y and X are in their respective care, with such phone calls to not exceed 10 minutes duration.
For the purposes of changeover, where changeover does not take place at school, changeover shall take place at the Mother’s home with the Father to remain in his vehicle at all times during changeover.
Each of the Mother and the Father:
(a)attend and complete, as soon as practicable, the Parenting Orders Program offered by Family Life, or such other program as agreed between the parties ("the program");
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other party or their solicitors.
Unless otherwise agreed between the parties in writing, the parties are to use succinct email to communicate with each other about matters relating to Y and X, save in the event of an emergency when telephone communication is permitted.
The parties be permitted to attend all extracurricular activities and school events relating to Y and X normally attended by parents and receive at their expense all notices, school reports, school photograph order forms and newsletters and this order shall act as an authority for same.
Each party shall advise the other of any serious illness or injury suffered by Y and X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party keep the other informed at all times of their current residential address, the email address to be used for communication between them pursuant to order (8) herein and their contact telephone number.
Both parties be restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent in any way and/or any member of the other parent’s extended family or partner;
(b)placing derogatory comments about the other parent, or that parent’s extended family or partner on a public forum such as Facebook, Twitter, Instagram, Snapchat or any other form of social media;
(c)discussing parenting disputes and/or issues with or in the presence of Y and X;
(d)passing messages through Y and X; and
(e)involving Y and X in any form of dispute between the parties or otherwise.
IT IS NOTED that publication of this judgment under the pseudonym Macaris & Raddach is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5996 of 2018
| MS MACARIS |
Applicant
And
| MR RADDACH |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter relates to the future living arrangements for the parties’ two children Y born 2009 (“Y”) and X born 2013 (“X”).
The Mother is seeking orders that Y and X live with her and spend time with the Father in week one from after school Thursday until the commencement of school Monday and in week two from after school Thursday until the commencement of school Friday, for half of the term school holidays and week about in the long summer vacation.
The Father is a public servant employed by the Employer A (“the Employer A”). He works to an eight day rolling fixed roster with four shifts on and four shifts off. He works from 8:00am until 6:00pm on the first two days, from 6:00pm until 8:00pm for the second two days and then has four days off. He is also entitled to 10 weeks of leave per year.
The Father is seeking orders that Y and X spend time with him from the conclusion of school (or 9:00am if not a school day) on the first day the Father is rostered off work until 7:00pm on the day prior to the commencement of the Father’s rostered day on work.
The practical implications of the Father’s proposal is Y and X’s time with the Father will move forward by a day each week resulting in them spending three nights every eight days with the Father but on different nights every week.
This arrangement is somewhat difficult to envisage and is best understood diagrammatically as set out below:
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
1
A/S
2
7.00pm
9.00am
3
7.00pm
9.00am
4
7.00pm
5
A/S
7.00pm
6
A/S
7.00pm
7
A/S
7.00pm
8
A/S
7.00pm
1
A/S
2
7.00pm
9.00am
3
7.00pm
Key:
Day shift Night shift Time with Father A/S After school
The Father’s Counsel indicated the Father seeks orders Y and X spend half the school holidays with him. The Father’s vive voce evidence however is he has not, at least in 2019, made arrangements to take his annual leave during the school holidays. It is therefore unclear whether the Father seeks orders for half the holidays or whether he is seeking orders as set out in his Outline of Case document which states:
“For nine weeks each year coinciding with his annual leave provided that he provides the Applicant Mother with not less than 28 days’ notice of such time.”
Both parties seek orders that they have equal shared parental responsibility for Y and X.
Background
The Mother was born in 1969 and is aged 49 years. She is a health care worker running her own business; “B Pty Ltd ”. The Mother has an auto-immune disease called Crohn’s. The Mother is in a new relationship but does not live with her new partner.
The Father was born in 1970 and is aged 48 years. As noted he is a public servant with the Employer A and has been since 2004. During the relationship he also conducted a business; “C Pty Ltd”. The Father is in a new relationship but does not live with his new partner.
The parties commenced a relationship in 2005 and started living together in early 2006. They did not marry.
The parties separated under one roof in May 2018 and physically separated in June 2018. On 30 May 2018 the Mother filed an Initiating Application in the Federal Circuit Court seeking parenting and property orders.
On 20 June 2018 the Mother applied and obtained an interim intervention order for the protection of herself, Y and X against the Father which included an exclusionary order requiring the Father not to go or remain within 200 metres of the former matrimonial home. This followed an incident on 14 June 2018 when the Father threatened to attend the Mother’s place of work to obtain Y’s iPad and iPhone which were linked to the Father’s account. The Father believed the Mother was accessing Y’s devices to read his personal messages.
On 2 July 2018 the Father applied for and obtained an interim intervention order against the Mother for the protection of himself, Y and X. The interim intervention order included an order restraining the Mother from publishing on the internet, by email or other electronic means any material about the protected persons. The Father’s application was also related to the iPad/iPhone issue and the Father’s belief that the Mother was withholding them to access his personal information.
On 9 July 2018 interim parenting orders were made by consent which provided for Y and X to live with the Mother and spend time with the Father as follows:
a)from the conclusion of school/childcare (or 9.00am if not a school/childcare day) on the first day following the conclusion of the Father’s roster until the commencement of school/childcare (or 7.00pm if not a school/childcare day) on the day prior to the commencement of the Father’s roster commencing 10 July 2018;
b)from 9.00am on 11 August 2018 until 7.00pm on 19 August 2018; and
c)at such other times that may be agreed between the parties in writing.
The orders also provided for changeover to take place at school/childcare or the maternal grandmother’s home.
On 9 July 2018 property matters were referred to private mediation and final property orders were made on 30 November 2018.
There is a notation to the orders made on 9 July 2018 which provides for the Father to pay half of any gap medical expenses in relation to Y and X.
There are further notations to the 9 July 2018 orders in the following terms:
“B. For the purpose of the father’s roster as referred to herein, the parties agree that the roster currently involves the father working 4 days on and 4 days off (8 day roster) and that notwithstanding any holidays or annual leave, the same regime referred to in 3(a) herein, shall continue until further Order (3 consecutive nights and 4 days with the father).
C. The mother’s consent to the interim parenting Orders adhering to the father’s roster are without prejudice to the final Orders the mother seeks, which involve a more consistent and regularised fortnightly regime.”
In early 2018 the parties were advised by X’s kindergarten teachers that X was exhibiting behaviours that may be indicative of Autism Spectrum Disorder and suggested that he be assessed. After a referral to Paediatrician Dr D, X was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) in July 2018. X is currently managed by Dr D, occupational therapist Ms E, diagnosing psychologist Ms F and psychologist Ms G. Ms G is also working with the parents.
On 27 July 2018 the Father breached the intervention order by coming within one metre of the Mother at changeover and later in that month by making phone calls to the Mother that did not relate to Y and X. The Father received a diversion for the breaches and was required to undertake a men’s behavioural change program.
On 15 November 2018 the Father reported the Mother to Suburb H Police for an alleged breach of the intervention order against him on the basis she posted holiday photographs of Y and X on Facebook in late July 2018. The Mother had removed the photographs within three weeks of them being posted.
Both parties contested the intervention orders taken out against each of them by the other. Their matters were listed for a contested hearing on 29 May 2019. When being cross-examined, the Mother was asked whether if the Father withdrew his intervention order application, would she be prepared to withdraw her application. The Mother responded that:
“I feel my grounds for my intervention order are genuine and it needs to go to trial.”
The Evidence
The Mother
The Mother relies on her trial affidavit sworn 25 February 2019. The Mother also gave viva voce evidence at the final hearing.
The Mother also relies on the affidavits of her mother Ms J sworn 13 October 2018, her friend Ms K sworn 15 October 2018 and her receptionist Ms L sworn 8 March 2019. Ms J, Ms K and Ms L were not required for cross-examination.
As previously noted in this judgment, the Mother is seeking that Y and X live with her and spend time with the Father in week one from after school Thursday until the commencement of school Monday and in week two from after school Thursday until the commencement of school Friday, for half of the term school holidays and week about in the long summer vacation.
It is the Mother’s evidence that the existing orders that provide for Y and X to spend time with the Father to fit in with the days that he has off on his rolling four/four roster is creating significant difficulties, particularly for X, and also for herself, for the other parties who assist her in caring for Y and X as well as Y and X’s school and treating medical practitioners.
It is the Mother’s evidence that X in particular is struggling with the current arrangements. Because of his ADHD, X requires regular and consistent routine and it is the Mother’s evidence that the constant and ongoing changing of the days which he spends with the Father is both confusing and upsetting for him.
It is the Mother’s evidence that the current arrangements are also playing havoc with her capacity to get on with her life and to manage the varying demands placed on her.
As noted previously in this judgment, the Mother is a health care worker who runs her own business. It is the Mother’s evidence that because of the changing pattern of the current living arrangements for Y and X, she is unable to have fixed client session days and times and therefore provide predictable continuity of treatment for her clients.
In paragraph [72] of the Mother’s trial affidavit she deposes as follows:
“My business would be more profitable if I could have regular session times on a fixed fortnightly basis to accommodate returning clients. For instance, the proposed Orders I am seeking would result in Mr Raddach having the children every Thursday night, which in turn would allow me to offer Thursday patients the chance to re-book the same time-slot weekly or fortnightly, but more importantly offers consistency. My proposed Orders would also mean Mr Raddach would have the children each alternate Saturday, enabling me to work full Saturdays fortnightly, Saturday times being the most sought after appointments.”
The Mother suffers from Crohn’s disease. It is her evidence she is susceptible to flare-ups which are predominantly caused by stress. On 7 January 2019 the Mother had a significant flare-up which resulted in her being hospitalised at the City M Hospital for four days.
It is the Mother’s evidence that one of the major causes of her stress is having to manage her life around the Father’s roster.
It is the Mother’s evidence that a further major contributor to her stress is the highly conflicted and difficult relationship she has with the Father which is exacerbated by the continuous communication that is needed between them in order to manage the current living arrangements.
It is the Mother’s evidence that she has been seeing a psychologist, Ms N, since August 2017, to assist her in managing the difficulties she has in dealing with the Father and to assist her in managing her stress and mental health issues arising from the necessity of ongoing communication with the Father.
It is the Mother’s evidence that she finds the Father to be controlling and intimidating and he is someone who puts his own interests ahead of Y and X’s.
The Mother describes receiving continuous, lengthy emails from the Father in relation to the arrangements that he seeks for Y and X. In paragraph [70] of her trial affidavit the Mother deposes to counting the number of emails the Father has sent to her since she took out the interim intervention order in June 2018. She deposes that in that eight month period she had received a total of 125 emails from the Father, whilst she had only sent to him 72. Of the 72 emails sent by her only 15 had been initiated by her, the balance being responses to emails from the Father.
It is the Mother’s evidence that the Father has an option to work set days and regular hours with the Employer A, albeit such a role would not be operational. She agrees that these positions are only available for up to a period of two years but notes that the Father can make further application for a similar role so that he could be more predictably available to care for the children.
It is the Mother’s evidence that her proposal for Y and X’s living arrangements is not dependent upon the Father making application for a non-operational role, particularly given his evidence that this is not something he is willing to do because of the limitations it places on his capacity to advance in his career as a public servant. It is her evidence that the Father can and should make arrangements for Y and X’s care whilst they are with him if he is required to work noting that he has available to him the ongoing assistance of his mother as well as exploring the possibility of engaging a nanny.
It is the Mother’s evidence that not only are her, Y and particularly X’s lives made difficult by the current arrangements, but also those who assist her in the care of Y and X and in particular her mother, at whose home changeover currently takes place. It is the Mother’s evidence that Y and X’s school is also impacted by the current arrangements as the constant change to the days on which one or other of the parents pick the children up make it very difficult for them to stay on top of which parent should be expected on any given day.
It is the Mother’s evidence that she believes her proposal for a known, regular and consistent living arrangement for Y and X is clearly in their best interests as it gives them consistency and routine.
The Mother also argues her proposal is in Y and X’s best interests because she will be in a better position as their primary carer, to manage her life and work commitments which will maximise her earning capacity and her ability to care for her own health. This will in turn enable her to be the best mother she can possibly be to Y and X.
The Father
The Father relies on his trial affidavit sworn 1 March 2019. The Father also gave vive voce evidence at the final hearing.
As previously set out in this judgment, the Father is a public servant with the Employer A. He works an eight day rolling roster which sees him work four days on and then have four days off. The Father is seeking orders that Y and X spend time with him on the days that he is not working. The practical effect of such an arrangement is the days that he spends with Y and X moves forward by one day each week.
It is the Father’s evidence that he has been a public servant for 15 years. He was a public servant when he and the Mother commenced their relationship and he was a public servant when he and the Mother made the decision to have children together. He wishes to continue to be a public servant as it is a job that he loves.
It is the Father’s evidence that he believes it is in Y and X’s best interests that they be afforded the opportunity to spend time with him when he is fully and freely available to them and is able to therefore fully participate in all their activities including their school, sport, social activities and their everyday ordinary home life.
The Father refutes the Mother’s evidence that Y and X find the current arrangements confusing and unsettling as they have grown up with and are used to his work arrangements. It is the Father’s evidence that he has prepared a pictorial calendar for Y and X which is on display in his home so that they can easily see what they are doing and where they will be living in a form that is understandable to them.
The Father agrees that whilst the parties were in their relationship he ran a business during the times that he was not rostered to work as a public servant. It is his evidence that since the breakdown of the relationship with the Mother he is no longer pursuing this business in order to ensure he is available to care for Y and X.
It is the Father’s evidence that he does not wish to make application for an office job within the Employer A. It is the Father’s evidence that he loves being an operational public servant and that he has no desire to take an office job. It is the Father’s further evidence that there is not a large number of office jobs within the Employer A and even if he were to make application for such a position, there is no guarantee that he would be successful. It is the Father’s further evidence that these positions are only usually available for a period of up to two years, so that even if he were to make application for such a position and be successful, it would be for a short time only.
It is the Father’s evidence that if the Mother is successful in her application before the Court and he were to continue as an operational public servant, he would have considerable difficulty in arranging care for Y and X on a regular, ongoing basis to cover the periods when he would be at work. It is his evidence that whilst his mother does and would assist him, she is not in a position to commit to undertaking the care of Y and X on a permanent and ongoing basis to cover his working hours.
The Father agrees that currently he and the Mother do not communicate well. Whilst the Father acknowledges that the Mother would prefer that they communicate by way of a communication book, it is his evidence that he finds this limiting and impractical because of the eight-day turnaround period and because Y can read the book and the entries made in it.
Tendered into evidence were copies of email and text message communication between the parties which evidenced their at-times less than respectful communication and propensity for point-scoring against each other.
The Father was questioned about his having the Mother charged for breaching the intervention order on the basis that she had posted some photographs of Y and X on holiday in Queensland in July 2018, a few days after the Father had obtained the intervention order against the Mother which prohibited her from doing so. It was put to the Father that making a complaint to the police some four months after this occurred and in circumstances where the Mother had removed the post within three weeks of it going up was nothing more than “a churlish, nasty little revenge act”. The Father denied that it was such an act saying that he felt it was necessary that “the Mother be held to account for a clear breach of the intervention order.”
Ms G
Ms G is an educational psychologist employed by O Psychology. Ms G is working with the parties and X.
Tendered into evidence was correspondence from Ms G dated 7 March 2019 addressed to the Mother’s solicitor together with a school assessment of X undertaken by Ms G dated 6 March 2019. Ms G also gave vive voce evidence by telephone at the final hearing.
Ms G’s correspondence of 7 March 2019 is as follows:
“Dear Ms P,
In response to your request to provide an opinion on whether or not an 8 day cycle or a fixed fortnightly arrangement would be more suitable for X, I am not in a position to do so. I can, however, provide you with information on sessions that have been provided through O Psychology to date.
X was referred to O Psychology by his Paediatrician Dr D in May 2018 for a Cognitive Assessment and an Autism Spectrum Disorder Assessment (ASD) using the ADOS and ADI-R. Ms F (Psychologist) at Outside the O Psychology assessed X on the 100000/0718 and 11/07/18 using the ADI-R, ADOS and the WIPPSI-IV. The assessments state that X did not meet Diagnostic criteria for ASD, but did meet criteria for a diagnosis of Attention-Deficit/Hyperactivity Disorder (ADHD), predominantly hyperactive/impulsive presentation. This diagnosis needs to be confirmed by X's Paediatrician Dr D. For further details see report.
Following these assessments it was recommended that X’s parents would benefit from parent education and school liaison to support X both at home and at school.
X’s parents have both attended two parent education sessions at O Psychology on 23/01/19 and 6/2/19. Both X’s parents are committed to parent education/counselling sessions. Both parents are aware that children presenting with symptoms of ADHD benefit from routine and consistency.
Both parents state that they are implementing consistent routines across households in regards to parenting and supporting X. During our sessions we have discussed bedtime routine and use of screen time. Both parents are in agreement with implementing the same bedtime routine and both parents are in agreement with implementing an agreed upon screen time across households.
A school observation was conducted on 6/3/19. X’s teacher Ms Q reports that she is very happy with X’s progress to date. According to Ms Q, X has made great progress since the beginning of the year. At present Ms Q does not have any major concerns regarding X’s behaviour both inside and outside of the classroom.
It is recommended that X’s parents continue with parent education o support them in parenting X and ensuring there is consistency and routine across both households, that X continue to be monitored in his progress at school, that he continue with regular Occupational Therapy to assist him with his fine motor skills and with providing strategies in the classroom to help support him with attention and concentration. It is also recommended that he continue to be reviewed by his Paediatrician Dr D.
N.B This letter has been written in consultation with Ms F.
Kind Regards
Ms G
Psychologist”
In the school assessment completed by Ms G she sets out her observations of X in the classroom and concludes as follows:
“Ms Q reports that she is very happy with X’s progress since transition. She reports there are no current behaviours of concern inside the classroom or in the playground. Ms Q states that X will sometimes require ‘time out’ in the quiet corner particularly at the start of the day and can then be easily re-directed to join the group. Ms Q has also observed X to ‘zone out’’ from time to time especially when he is required to sit on the mat and listen to verbal instructions. Overall she is very happy with his progress.
It was pleasing to see that X is doing well at school.”
Under the heading “Recommendations” Ms G wrote:
“Requires prompting/reminders of what to do next when transitioning from one task to the next.
Verbal instructions to be paired with visuals.
Check in to make sure X stays on task. During mat time X can zone out. Check in by asking him a question.
X continues to struggle with his fine motor skills, particularly his handwriting. As the workload increases this might cause him frustration as he may take longer to complete work tasks and may fatigue more easily than his peers. Alternatives such as a scribe or using a computer to type his words/sentences may be helpful for future years.
OT to visit school and provide strategies for fine motor tasks ie. handwriting and ideas to help his concentration and attention during mat time ie. weighted lap band or move ‘n’ sit cushion to implement regular break times.”
Ms G was clear when giving her vive voce evidence that she was not prepared to give an opinion on what X’s living arrangements should be in terms of the competing proposals being put by the parties as that is something that they need to sort out through the Court process.
At the time she gave her evidence, Ms G had only met X once and had only met the parents twice. The parties had an appointment with her the following week. It is her evidence that when she meets with the parties her focus is on making sure that when X is in each of their care they are being consistent with their parenting routines. She noted that both parties have agreed to do this.
It is Ms G’s evidence that when she first met with the parties they started to have a conversation around the dispute between them as to what would be the best living arrangements for X. She made it very clear to the parties that this was not a conversation she was prepared to have with them or something upon which she was prepared to express an opinion.
Ms G was asked whether she got the impression that both parties sincerely want to work together in a positive manner to assist their son. She responded “I did”.
Ms G was then asked whether she believes the parties will do their very best to implement her recommendations. Ms G responded “I do”.
It is Ms G’s evidence that she believes it will be beneficial if she sees the parties at least monthly at this point in time. She believes that it would be beneficial for the parties to have psycho-education around how to best support X, particularly given the parties are separated and X will be parented across two different households. Ms G believes that keeping consistency and routine across those two households is very important.
When questioned as to her future level of her involvement with X as well as with the parties, Ms G indicated that at this time X appears to need input by way of occupational therapy rather than regular input from her. It is her evidence that the question of whether he needs more frequent input from her will be determined by how he progresses at school.
Ms G was asked whether, when she talks about consistency and routine, is she talking about what happens during each day or during each week. Ms G’s response was that she is talking about what happens during each day and therefore her work with the parties has been about implementing consistent routines when they have X in their care.
A final question was put to Ms G by the Court as follows:
“Quite properly, you’ve made the observation you’re not going to buy into whether it should be certain days a week or following Dad’s roster … I got the impression that, from your perspective – and please correct me if I’m wrong – it’s – the consistency and routine of what happens every day?”
Ms G responded:
“It is what – it is what’s happening every day for the child. Yes.”
Dr D
Dr D is X’s treating paediatrician. Tendered into evidence is a document dated 11 March 2019 dated Interim Review from Dr D. It reads as follows:
“I am writing as X's General Paediatrician.
X is a six year old who has recently commenced school. X is currently attending Suburb R Primary School.
We have discussed behaviour and emotional regulation and we are keeping under surveillance his attention and concentration and focus with regards school work.
X has seen psychologist, Ms G and he has also had occupational therapy at Melbourne Kids Therapy.
My recommendations regarding management for X have been discussed with the family during the consultation and that they have ongoing work with allied health therapists, psychologist and an occupational therapist.
Good sleep, nutrition, exercise patterns and involving mindfulness and physical activity as well attending to self-esteem and wellbeing will be important I feel throughout the early primary years for X.
I started seeing X on 21/5/2018 and a home environment with consistency and routine would be recommended in implementing the aforementioned.
With kindest regards,
Dr D.”
Dr D was contacted by telephone and asked if she could provide some evidence to the Court in relation to X. Dr D was in the middle on an extremely busy day at work and was not able to provide the Court with any assistance on that day.
Before terminating the call to Dr D the Court put to her the following:
“In your letter you say you started seeing X last year and concluded that a home environment with consistency and routine would be recommended in implementing all the things that you’ve recommended … I will ask you this question … is what you’re saying is that the same things should happen for X whether he’s at Mum’s place or Dad’s place?”
Dr D responded:
“As much as possible, I think it’s easier for children to have consistent routines when they’re – both with their – in both of their different parents’ homes.”
Ms S
Ms S is a psychologist who prepared a family report dated 12 November 2018 which was annexed to her affidavit sworn 22 November 2018.
Ms S gave vive voce evidence at the final hearing. She adopted her affidavit and report.
In her family report under the heading “the mother…” Ms S reports the Mother in paragraph [20] as describing having to juggle work and parenting arrangements without the Father’s support when X was born in 2013. Ms S then sets out the Mother’s comments as follows:
“She accessed support from her mother who provided care to X while Ms Macaris returned to work part-time. Ms Macaris commented, “Mr Raddach didn’t help much with Y and helped even less with X who didn’t sleep and cried a lot. I was exhausted.” Ms Macaris found that Mr Raddach’s work roster difficult to work around from an early stage. He returned to a day role temporarily however eventually resumed his role as a public servant. She commented, “It was just so disruptive, even then…We never got into routine…it always felt as though his work came first.” Ms Macaris reported that the relationship deteriorated significantly after X’s birth. They began sleeping separately, and Ms Macaris stated, “We just argued all the time, about finances about parenting…neither of us, were good with conflict, and we stopped talking.”
In paragraphs [22] through to [24] Ms S sets out in detail the Mother’s concerns in relation to the Father and the difficulties with the current living arrangements for X:
22. “In the post-separation period, Ms Macaris continued to experience Mr Raddach as intrusive and controlling. Ms Macaris now regrets agreeing to Mr Raddach insistence on prioritising time with the children on his days off. At the time she believed it would enable the children to remain close to both parents post separation and assist with adjustment issues. In hindsight and time away from the relationship she reflected that her conflict avoidant style combined with Mr Raddach’s domineering approach led her to being unable to assert herself around parenting arrangements. She commented, “He’s so controlling…even now…I’ll get three emails and texts on a minor issue involving the kids…he doesn’t stop until he gets the answer he wants.” Ms Macaris felt that Mr Raddach’s overbearing style needed to be addressed and she determined that an IVO was necessary to place some boundary around his behaviour.
23. It is apparent from Ms Macaris narrative she finds the constant need to reference Mr Raddach’s roster before committing to any activity fatiguing and unnecessary. It required a level of cooperation and support on her part that she feels isn’t, and never has been, reciprocated. In appraising the current circumstances, Ms Macaris felt She comments, “He has numerous work opportunities that don’t involve this roster, but he can’t see that his need to be a public servant is more important than the children’s stability.
24. Specifically, in relation to the issue of stability, Ms Macaris identified significant concern for X. She finds it takes approximately two days to resettle him after his time with Mr Raddach and that his acting out behaviours are more noticeable around this time. Ms Macaris felt that an inflexible parenting arrangement will not augur well for X next year. She is worried about his ability to manage in a school setting. While a “watch and wait” approach to medicating X to manage his A.D.H.D symptoms, Ms Macaris worried. “He will be exhausted…I don’t want him to be that naughty kid at school.”
In paragraph [25] of her report Ms S notes that the Mother indicated that Y has “adapted relatively well to the changed circumstances” and that she “presents as enjoying time with each of her parents”.
Under the heading “the father…” Ms S at paragraph [27] states the following:
“27. When discussing proposals before the Court Mr Raddach stated, “I feel as though I am being asked to choose between the job I love and my children.” On the topic of his occupation, Mr Raddach gave a detailed history of his various roles within Employer A. It was apparent that much of Mr Raddach’s identity and life satisfaction is bound up in his role as a public servant . He said, “I’m one of a few people who absolutely love their job.” Mr Raddach reported that while he could secure work within Employer A that did not include shift work he would prefer not to.”
In paragraph [28] Ms S sets out the Father’s description of his relationship with the Mother in the following terms:
“28. Mr Raddach described an unhappy history to his relationship with Ms Macaris. He commented, “I loved being around the kids, but we were a crap couple…I tried to make it work but I couldn’t.” Mr Raddach found that following X’s birth, the intimacy in their relationship faded and Ms Macaris determined to co-sleep with X. Mr Raddach said, “we just drifted…she was always angry at me…around money and around the kids. I felt I couldn’t do anything right.””
At paragraph [29] of her report Ms S sets out the Father’s description of his close bond with Y in the following terms:
“29. Mr Raddach’s described his close bond with Y as developing out of the changed dynamics that evolved in relation to X’s care needs. Mr Raddach explained that X was a difficult sleeper and this impacted on the household’s stress levels. He was working shift work and would often take Y out for the day to provide Ms Macaris with respite. In the process, Mr Raddach reported that he and Y “developed a beautiful bond.” Mr Raddach finds the critique of his parenting by Ms Macaris unsurprising but rejects the notion he was unsupportive rather felt he was trying to equalise the parental stress and be a supportive partner”.
In paragraphs [32] and [34] of her report Ms S sets out the Father’s perspective on his proposal and the current parenting arrangements as follows:
“32. Mr Raddach provided an overview of his roster and details of the parenting schedule. He feels time with the children on days off enables him to immerse himself in the parenting role, and the children benefit from his availability and attentiveness. He said “It works well for them and for me. I can do the school pick up and drop off…the kids don’t seem as stressed now.” Mr Raddach felt that while he and Ms Macaris have different parenting styles, the difference compliments rather than frustrates arrangements. He disagrees that the arrangements are disruptive and unsettling for the children, particularly X. He has consulted a Psychologist on the issue of the children’s adjustment and claims she saw the arrangements as entirely appropriate…
34. In reality testing, the competing proposals Mr Raddach reported a high level of satisfaction with arrangements to date and a desire for the schedule to continue with the possibility of an additional night. Mr Raddach was open to advice about the impact of the schedule on X. He could potentially take on a day role with Employer A but would prefer not to. Mr Raddach felt the current arrangement maximised opportunities for a variety parenting experiences and he rejects the notion that it is burdensome for Ms Macaris and the children alike. He said “The children are accustomed to it…X doesn’t struggle when he is with me…I don’t see the behaviour that Ms Macaris is referring to.” Mr Raddach stressed the importance of him playing an equal and active part in the children’s lives. Mr Raddach concluded, “I love being a parent…I get so much out of it.””
In her report Ms S notes that she formally interviewed Y. In paragraph [37] Ms S states that Y’s responses to questions about her identity “reflected a healthy self-esteem” and that “she expressed no concern about the manner in which her life was unfolding”.
In paragraph [38] of her report Ms S states as follows:
“38. Y appraised each parent as being relieved and “happier” post-separation. She confirmed an initial sadness by their decision to live apart but “not so much now.” Y understood her parents conflicted the amount of time she spent with each of them. While she reported that their conflict did not leave her feeling worried about arrangements, she wanted her parents to try to resolve their dispute without involving the Court. Asked if she has any views about that decision she said, “The time with Dad is a bit confusing but not so much for me now…it’s harder for X…he doesn’t really understand.””
Ms S notes that X was resistant to being interviewed alone and was assisted by his sister. When asked questions about his family, Ms S noted that X “couldn’t focus his attention and either looked around the room or provided responses that were difficult to contextualise”. Ms S concluded the interview after a short period.
Ms S set out her observations of Y and X with each of their parents in paragraphs [40] to [42] as follows:
“40. Y and X were observed formally with their father and then with their mother. Upon seeing their father, they ran and embraced him. The observation had an energetic quality to it as Mr Raddach displayed a wide range of play skills and divided his time appropriately between X and Y. X could focus his attention on a particular chosen activity from time to time. Y is a compliant child, and she was observed to be highly responsive to her father’s guidance and advice. There was no indication of anxiety or apprehension and Mr Raddach’s parenting style presented as warm and relaxed. Toward the end of the sessions, X announced he was “going to get Mum” and left the room to fetch her.
41. Ms Macaris entered the room, and the children responded positively to her presence. Mr Raddach exited the room without fuss and Ms Macaris seamlessly engaged in a game the children were playing. She used her voice and facial expression to encourage and promote playfulness and ease for the children.
42. Both parents’ style of engagement with the children appeared intuitive and responsive. Their language, attitude and behaviour around the children remained child focussed for the entirety of the assessment.”
Under the heading “Evaluation” Ms S states the following at paragraph [44]:
“44. An unconventional approach to the parenting schedule was developed pots-separation and in accordance with Mr Raddach’s work roster. This could be regarded as a well-established routine in which the children have thrived post-separation. However concern about the disruptive nature of the schedule, the impact on X and an inability to function autonomously led Ms Macaris to conclude that it was not in the children’s best interests. A guidelines principle in relation to optimal parenting arrangements for children particularly of school age indicates the need for parenting work schedules to be flexible and responsive to children’s changing needs. Mr Raddach’s roster does not accord with this principle, and Ms Macaris has withdrawn her support in relation to it. Some review of the current arrangement is appropriate.”
Ms S discusses the family violence claims and counterclaims between the parties in paragraphs [45] and [46] as follows:
“45. Several family violence claims and counterclaims exist in the context of a highly stressful period in which the parties were separated under one roof. Ms Macaris experienced Mr Raddach as coercive and controlling around many aspects of their life together. She clams this led to her modifying her behaviour in such a way that her needs in the relationship were subjugated and she felt increasingly powerless. His insistence upon parenting arrangements that align with his work schedule was one of many examples used to explain her perspective. This informed her view of Mr Raddach post-separation, and she continued to experience him as acting in an overbearing and aggressive manner on issues relating to the children. Mr Raddach claims to have experienced Ms Macaris as verbally abusive in the latter stages of their relationship and undermining of his role and importance in the children’s lives. He does not express a sense of fear in relation to Ms Macaris but believes the interim IVO had the desired effect of modifying her behaviour around him. The exercise of deconstructing family violence claims of this nature is made more complex by the absence of corroborating information from sources independent of each party.
46. It is difficult to make an evaluative comment about the primary perpetrator of the violence however it is apparent that Ms Macaris continued to experience Mr Raddach as acting in a controlling and threatening manner leading to resulted in a breach of the IVO. It is likely that in the lead up to the separation there were hostile exchanges that increased in frequency and intensity as each party tried to assert their position in relation to parenting and property matters. In transitioning towards a more stabilised parenting arrangement and a less emotive phase of their separation, there appears to have been a diminution in the scale and type of parental conflict. The interim IVO’s and family law orders have played a protective role in this process, and the parties’ cooperation with orders suggests they are unlikely to engage in behaviours that invite concern and forensic scrutiny of their conduct.”
In paragraphs [47]-[48] Ms S concludes that it would seem reasonable for Mr Raddach “to review his preferred work arrangements in the interim so that X is not encumbered with the additional task of navigating a complicated parenting schedule”. Paragraphs [47] and [48] read as follows:
“47. Nonetheless, there remains an ongoing conflict about what parenting arrangements will best support the children's changing developmental needs. In 2019 X will commence his formal schooling with a diagnosis of A.D.H.D. At assessment, it was evident X experiences difficulty regulating his behaviour and focussing his attention. His diagnosis of A.D.H.D. is a recent one, and the need or otherwise for medication did not appear to be a source of ideological conflict between his parents. X’s transition to his Prep year is predicted to be a challenging one. The demands of a classroom setting and the discipline of a school routine will stretch X’s internal resources, and he is likely to be fatigued and unsettled in the first year at least. His ability to self-regulate and function independently will need considerable support. Having a home routine that is harmonised with his schooling schedule is recommended. In view of this predicted stress, it would seem reasonable for Mr Raddach to review his preferred work arrangements in the interim so that X is not encumbered with the additional task of navigating a complicated parenting schedule.
48. X’s move to Prep next year will place additional pressure on the co-parenting relationship. At this point, there is no communication pathway or structure to support healthy and spontaneous information exchange between his parents. Professionals working with X and his family will expect to be able to share information and exchange ideas without the additional complexity of managing parental conflict and hostility. It is fatiguing for educators and professionals alike. If the safety needs of the parties can be managed, it is recommended they engage in post order counselling to support X’s transition to school and their co-parenting difficulties.”
Ms S’s conclusions are set out in paragraphs [51] and [52] as follows:
“51. In evaluating the respective proposals before the Court the writer formed the conclusion that while the current arrangements strengthen the children's relationship with both parties post-separation and allow for the active involvement of both parents, serious consideration does need to be given to Mr Raddach seeking work with the Employer A that affords him a flexible work arrangement that aligns with the routine of a school week for the children. Whilst it is acknowledged that it will only ever be "a temporary measure" as deposed in Mr Raddach's affidavit material, the temporary shift for approximately 1 - 2 years is an attractive option in supporting X’s next developmental stage.
52. Recommendations regarding the optimal allocation of time across households are difficult to determine given the relative recency of the physical separation, the children's differing developmental stages and the uncertainty around the parents' capacity to rebuild their relationship, however, the following is considered a guide for the next 1-2 years. The key to functional post-separation arrangements for children in this developmental period is flexibility and sensitivity around their changing needs.”
Under the heading “Recommendations” Ms S states the following:
“Recommendations
Parental Responsibility
The parties are to share parental responsibility
Living Arrangements
The children are to live with their father;
In Week 1
From Thursday after school until Tuesday before school
(This may need to be adjusted if X is displaying some developmental stress in relation to the duration of time)
In Week 2
From Thursday after school until Friday before school
And with their mother at all other times.
Pick Up/Drop off
School or home to home
Electronic Communication
The non-resident parent is permitted to communicate with the children each night at an agreed time and in the absence of agreement between 6:00 pm and 6:30 pm.
Holidays & Celebratory Days
To be shared equally
Professional Support
The Court would be assisted by a brief report from X’s treating Paediatrician (and/or other treating professionals) outlining his diagnosis, treatment and any recommendations about what parenting arrangements and schedules are most conducive to supporting a child of X’s age with A.D.H.D.
A copy of this report be provided, if requested, to any Professional working with the family.
The parties are encouraged to continue to seek individual counselling on a needs basis to assist in their adjustment to the separation.
The parties are likely to benefit from engaging in a Parenting Orders Program (P.O.P.) such as that offered by Family Life; ( It is in this setting that parenting arrangements can be reviewed and refine in such a way that accords with the children's changing developmental needs. There is capacity for the children to be involved in that program and the writer would recommend that the parties follow the advice of the practitioners as to the suitability of their inclusion.”
When giving her vive voce evidence Ms S agreed that the positive report from Ms G as to X’s progress at school up to week five was very promising, but noted that whilst: “they’re great signals … you would want to be reviewing that in six months’ time. You would want input from other professionals and the parents as well to get – I guess you’re looking at a more sort of fulsome picture.” Ms S agreed however, that his transition to Prep, at least initially, has not been as challenging as she had anticipated in paragraph [47] of her report (see paragraph [85] of this judgment).
Ms S also agreed that if the recommendations in her report were followed and the Father was to obtain a two-year position that would allow the kind of arrangements that she was recommending, she does not say what is to then happen at the end of that two year period, particularly if the Father were to return to his current working arrangements. She indicated that she was reluctant to predict that far into the future around these kind of disputes, other than to observe that X will be two years older and he may well be better able to manage the transition back to the current arrangements.
It was put to Ms S that if the Father was unable to or did not obtain a position that enabled him to work regular weekday hours and orders were made in the terms proposed by the Mother and recommended by her, it would not be in the children’s best interests because it would markedly reduce their quality time with their father compared to the regime they have at the moment. Ms S agreed with that proposal.
Ms S was asked what the impact would be on Y and X if they were with the Father but he was not available to care for them because he was at work and he therefore had to employ a nanny or have alternative care arrangements. It is Ms S’s evidence that if another caregiver was introduced to the children, she thought Y might manage those arrangements reasonably well. However, Ms S was of the view that X would need a lot of time to get to know the carer during which period X could show the carer some of his “bad bits” before settling into the routine. Ms S observed that having caregivers for X at this point is, she thinks, “a bit of a red flag”.
Ms S was asked about the impact on the Mother and her parenting arising from the stress that the current arrangements cause her, particularly given she suffers from Crohn’s disease. Ms S responded as follows:
“I say that the psychological and general wellbeing of a parent has a very clear relationship with their capacity to care for the children and I have no doubt that she is under considerable stress and notwithstanding the diagnosis of ADHD, which is linked very clearly to caregiver stress, that is not going to go away. The symptoms are managed. They’re not – they don’t go in to remission.
…that’s something that, you know, would need to be thought about in the – you know, for the – for – for the entirety of his childhood, at least. I mean, I did get the sense that she was under significant pressure. I would also say that she is managing that very well.”
It was put to Ms S that the rolling roster had been a significant problem for the Mother throughout the relationship, that it was ultimately one of the causes of the breakdown of the relationship and the Mother now finds herself a couple of years after separation still being controlled by that roster. Ms S was asked whether removing that control would improve the outcome for the Mother and the children. She responded as follows:
“I am sure it would, from her perspective. I’m sure that her psychological perspective on the care arrangements would be altered. I think she sees the current roster and the care arrangements as oppressive. It’s a representation for her of her experience of the Father during the marriage and this is something that she cannot disentangle herself from, despite the fact that she would desperately like to. It goes without saying that if – if the care arrangement falls to an arrangement that is more aligned with her ideas about what is an optimal arrangement, she is going to feel better about that.”
It was then put to Ms S that Counsel for the Father had put to her that if there was no adverse effect on X, maintaining the status quo was acceptable and that Ms S had agreed with that proposal. Ms S was asked by Counsel for the Mother: “How does that sit with the impact on the mother, or does the impact on the mother alter what you say?” Ms S responded as follows:
“…the psychological wellbeing of a parent is only one domain … she doesn’t present as a parent who’s saying, “I can’t tolerate this and my mental health is significantly deteriorating or my physical health is significantly deteriorating.” I think there is a little bit of – there’s – some of her perspective, she views him through such a negative lens that – that I think that that loads on to that in a – for want of a better phrase, a slightly convenient way. But I don’t see her as letting herself get to the point where she would not be a competent and protective parent. That’s my impression.”
Ms S was asked whether there was actually a level of routine for Y and X in the current living arrangements as they know they see their dad for three days in every eight days, even though those days change. Ms S agreed there was a level of routine for Y and X in the current arrangements. Ms S was then asked whether either Y or X gave an indication that they found the current arrangements disconcerting or difficult to manage. Ms S answered:
“I explored that with Y and she – she doesn’t seem to – there was no comment from her that suggested to me that this is a problematic arrangement for her. And she quickly referenced the fact that, you know, she was older and it was a bit more difficult for X because he doesn’t understand.
So what I inferred from that was that she’s comfortable with the arrangement. She has a really good relationship with both her mum and her dad. So the bond there is going to help her, you know, through the – the ups and downs and ebbs and flows of this. And there’s no behavioural indicators from Y. You know, she’s not saying to me one thing and then you’ve got all this other stuff going on that’s screaming alarm about this current arrangement.
…
…in relation to X, very difficult for me to get a – to get a better understanding of what his thoughts and feelings are in relation to this arrangement. I think the notion of X displaying a range of more difficult behaviours when he’s in his mother’s care, as opposed to his father’s care, is probably real. She has been his primary caregiver and so when they come back from time with their other parent, you do get this – you do get these acting out behaviours that they only like to show the person that they have this strongest bond to.
So I mean, if I went on X’s presentation at interview, then I would be saying stop. We really need to – this needs to pull in to line around a school week routine because he’s just not going to manage the cognitive stress associated with working out when he’s going to mum’s and when he’s going to dad’s on top of all that he is being exposed to in that new school setting. You know, sit down, line up, put your hand up, you know, don’t throw the soft toy at so-and-so.
So there’s all that stuff that’s going on for him at the moment. To load on to that the demanding task of working out when you’re going to mum’s and dad’s, to me, at assessment, seemed like a loading that he shouldn’t be bearing. But the signal from the psych report is telling me something different and I can’t ignore that. I mean, she’s an ed psych. They know what they’re talking about. So that influenced and slightly changed my perspective on it, in terms of which arrangement was going to be an okay one. And the other factor which is really unhelpful is that I don’t know – it’s really hard to predict how these things are going to play out, you know. I have reservations about the co-parenting relationship in terms of their cooperation. I think there’s petty tit-for-tat stuff. There’s – it’s tedious and I’m sure it’s tedious for the parents as well. But I fully expect that there will be lots of professionals that are engaging with the family and with – and with X over the course.”
It was put to Ms S that perhaps she did not as strongly maintain the recommendations contained in her report given the feedback from Ms G. Ms S responded “yes”.
The Law
Best Interests of the Child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“1. The objects of this Part are to ensure that the best interests of children are met by:
(a) 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 interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents
There is no doubt that Y and X have a close and loving relationship with both of their parents. This was observed by Ms S when she formally observed Y and X with each of their parents.
It is the Father’s evidence that he believes a continuation of the current arrangement which sees Y and X spending time with him when he is not working will ensure that he can continue to be fully engaged in all aspects of Y and X’s lives and will guarantee the continuation of their close and loving relationship.
It is the Mother’s evidence that the lack of consistency and disruption to routine that the current arrangements cause Y and particularly X cannot be seen to be in their best interests. It is her evidence that she believes a consistent parenting arrangement will provide Y and X with certainty and continuity and will not in any way disrupt their relationship with each of their parents, particularly if the Father applies for and obtains a position within the Employer A that will give him a “normal working week”.
Section 60CC(2)(b) – The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
Whilst the Mother accuses the Father of placing his own needs and in particular his wish to be an operational public servant ahead of the needs of Y and X, she is not critical of his actual care of them and makes no allegations that they are at risk in his care.
The Father speaks positively of the Mother as a parent, describing her to Ms S as a good parent.
Whilst it is very apparent that these parties do not like each other and struggle in being able to communicate effectively, Ms S in her family report at paragraph [50] makes the observation that “their protective parenting style is likely to prevent the children from being overexposed to their conflicts in the longer term.”
Ms S does however forewarn that “chronic parental conflict and hostility is well documented in the literature as having a detrimental impact on children’s adjustment post-separation.” Ms S particularly notes that “for children with social and emotional difficulties such as X, interventions to support his development are highly dependent on consistency across parenting arrangements in an environment where conflicts are resolved skilfully.” She states “ongoing parental conflict poses risks to the efficacy of any treatment plan, and in the process, X’s developmental (sic) may be compromised.”
To their credit, and despite their difficulties, these parties are both fully engaged with the treaters who are assisting X. They have been able to jointly attend educative sessions with Ms G and to follow her advice and directions in relation to consistent parenting for him when they have him in their care.
The parties have also worked together to access National Disability Insurance Scheme (“NDIS”) funding for X as well as working closely with his school to ensure he has access to all the supports necessary to facilitate him in being able to fully engage in his education.
It is very apparent from Ms S’s evidence and that of Ms G that this level of cooperation must continue into the future.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Because of Y and X’s young ages, their views were quite properly not canvassed or explored by Ms S in any detail.
She notes Y told her that the current arrangements are a bit confusing, “but not so much for me now … it’s harder for X … he doesn’t really understand.”
Section 60CC(3)(b) – The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted, Y and X have a very good relationship with both of their parents.
Ms S observes the Mother to have been Y and X’s primary carer and was therefore not at all surprised when the Mother reported some difficulties with X acting out with her that were not reported by the Father. Ms S explained that X would be more likely to display that behaviour with his mother because he has the confidence in their relationship to at times act out.
The maternal grandmother has been actively involved in Y and X’s lives since their birth and continues in that role by supporting her daughter in looking after them on a very regular basis.
Similarly, the Father reports his mother being involved in Y and X’s care and of them having a close and loving relationship with her.
Section 60CC(3)(c) – The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child
The parties’ evidence differs considerably on the extent of the Father’s involvement with the care of Y and X whilst the parties were together.
The Mother describes the Father as not being supportive of her and of the children during the relationship and of him being more committed to his work both as a public servant and as a tradesman than being available to care for the children.
The Father disputes the Mother’s evidence that he was not an involved father and describes himself as being available and actively involved in Y and X’s care as his working commitments allowed him to be available to them for six days out of every eight.
It is the Father’s evidence that when X was born he was a very difficult baby and that he would spend considerable time in caring for Y to give the Mother some respite.
What is clear is that since separation the living arrangements that the parties have had in place have ensured that both parents have been actively involved in Y and X’s care.
Further, as noted in this judgment, both parents have actively been involved in the decisions and treatment necessary to assist X given his recent ADHD diagnosis.
Section 60CC(3)(ca) – The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
It is apparent from the parties’ evidence that money and financial matters were a source of conflict and tension between them during the relationship.
The Mother accuses the Father of being very secretive about his finances and of failing to contribute to and meet fully the expenses of herself and the children.
A notation to the interim consent orders made on 9 July 2018 provides for each of the parties to pay one half of any gap medical expenses relating to the children less any rebates to be refunded to the paying parent.
The Mother makes complaint that the Father takes considerable time to reimburse her for X’s medical costs, questioning and delaying payment despite her sending him full documentation.
The Father currently pays child support as assessed by the Child Support Agency in the sum of $230 per week.
Section 60CC(3)(d) – The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is the Father’s evidence that if orders were made as proposed by the Mother, it would result in Y and X being cared for by others whilst he was at work. He argues that this cannot be seen to be in their best interests as it prevents him from being able to have the same level of active involvement in their day-to-day care that is afforded to them under the current arrangements.
It is the Mother’s evidence that her proposal would provide Y and X with a level of certainty and consistency that is lacking in the current arrangements but would still ensure the continuation of the loving relationship that they have with both of their parents.
Section 60CC (3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
It is the Father’s evidence that if orders were made as proposed by the Mother and he continues to work as an active public servant, there will be a real practical difficulty for him organising care for Y and X during those periods he is required to work when they are in his care.
Whilst he has a supportive mother, it is the Father’s evidence that she is not able to commit to providing that care on an ongoing and permanent basis to cover his working commitments.
Section 60CC(3)(f) – The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Both parties are responsible parents who have at the forefront of their actions the best interests of Y and X.
I am satisfied that both parties can and do provide for the emotional, intellectual and physical needs of Y and X.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
As has been noted X has recently been diagnosed with ADHD, albeit it is a little unclear whether that has been a formal diagnosis or one that is pending confirmation from X’s paediatrician Dr D.
Both parties are very much attuned to X’s difficulties and whatever else they are unable to agree on, they are on the same page in terms of recognising his difficulties, accepting the necessity for him to receive ongoing specialist treatment and most importantly are committed to following the advice of his treaters to ensure a consistency of routine and care in both homes.
As was quite properly highlighted by Ms S, Ms G and Dr D, X’s wellbeing is highly dependent on consistent parenting in both parents households. Ms S’s evidence is that parental conflict poses a risk to the efficacy of X’s treatment plan. It will therefore be vitally important that these parents continue to work together to ensure the current consistency of care that they provide X, whatever might be the state of their adult relationship.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
These parties are responsible parents who I am satisfied prioritise Y and X’s needs.
However, some of their tit-for-tat behaviour, particularly in the context of the intervention orders, does not reflect well upon them.
The Father’s actions in having the Mother breached for the intervention order on the basis of the photographs that the Mother briefly posted on Facebook some four months earlier does not reflect well on him at all and can only be seen as a spiteful and unpleasant act.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
The circumstances which gave rise to the contested intervention order applications that each of the parties have against the other has been well canvassed in this judgment.
The incidences which led to intervention orders being sought occurred around the time of physical separation when emotions were particularly heightened and when, to quote the Father when speaking to Ms S “(we) both said things we didn’t mean”.
Both parties continue to pursue the interim orders that they have against the other, with the Wife declining an offer from the Father during the final hearing to mutually discontinue their intervention order applications.
In the Father’s discussions with Ms S, the Father expressed the belief that the interim intervention order he had against the Mother has had the desired effect of modifying the Mother’s behaviour around him. The Mother in her vive voce evidence indicated that she believes she has proper grounds to obtain an intervention order against the Father.
The Father’s behaviour in causing the Mother to be charged with breaching the intervention order and the pettiness of that action has already been discussed in this judgment.
There is no doubt that the Mother genuinely finds the Father to be overbearing and aggressive on issues relating to the children. She views the Father’s proposal for time with Y and X as a continuation of this behaviour rather than it being a reflection of his desire to maximise the time that he can spend with them.
The Father in turn finds the Mother to be undermining of his parenting of the children and dismissive of his contributions to their care.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the majority of parenting cases it is in the best interests of children that their parents not be involved in ongoing litigation in relation to their care. This is such a matter.
If the Father were to take up the recommendation of Ms S and obtain a position for a period of up to two years that would enable him to work regular hours and put in place arrangements as proposed by the Mother, there is a real possibility that at the end of that period the Father would return to active duty as a public servant and the question of what the ongoing living arrangements for Y and X would again be live between the parties.
If orders are made in the terms sought by the Father and if the promising start made by X to his education and the progress he is making generally in relation to managing his ADHD was to falter, there is the potential for further litigation if one of the causes of X’s difficulties is identified as being his living arrangements.
If orders were made in the terms sought by the Mother and the Father continues to work as an active public servant there is the potential that he will not be able to always arrange for care of Y and X and that he may call on the Mother to assist in the care of the children when they should otherwise be with him. This would undermine the certainty that the Mother is seeking not only for the children but for herself.
What is apparent from the parties’ evidence is that both parties feel very strongly about the appropriateness of the proposals that they are putting forward. One of them is going to struggle to accept the Court’s decision when it goes against that which they are seeking. It will therefore be vitally important for Y and X that the disappointed party accepts, as far as it is possible to do so, the Court’s decision and does everything within their power to ensure that the arrangements work.
Section 60CC(3)(m) – Any other factor or circumstance that the Court thinks is relevant
As was flagged earlier in this judgment, there is some uncertainty about the Father’s proposal for holiday time with Y and X.
Whilst the Father’s Counsel advised the Court the Father was seeking orders for there to be an equal sharing of the school holidays, the Father seemed more ambivalent about this proposal when giving his vive voce evidence and seemed to indicate Y and X should spend time with him when he has organised his holidays rather than necessarily during the school holidays.
The reality is that the Father is entitled to ten weeks of holiday per year. Despite separating from the Mother 12 months ago, the Father has made no effort to ensure that his holidays, at least in part, coincide with Y and X’s school holidays.
There was a tone to the Father’s evidence that he expects the Mother to accommodate his holidays rather than the school holidays. This would result in the Mother not being able to plan her own holidays with the children or have some degree of certainty around what her working and child care arrangements need to be over the holiday period.
The current interim orders provide that where changeover does not take place at the children’s school or childcare, changeover is to take place at the maternal grandmother’s home in Suburb T and, for this purpose, the Father is at liberty to walk to the front door with the children but to not enter the home.
It is the Father’s evidence that the requirement to effect changeover at the maternal grandmother’s home is unnecessary and requires Y and X to undertake unnecessary travel given that he and the Mother live in relatively close proximity to one another.
The Father is proposing that changeover that does not take place at school should take place at the Mother’s home. He indicated a willingness to agree to an order that he would remain in his car when he dropped Y and X off if that would give the Mother some confidence that this would ensure that there was no unpleasant or unnecessary exchanges between them.
When cross-examined on this issue, the Mother somewhat reluctantly agreed to a proposal of exchange at her home on the basis that the Father stayed in the car, noting that she and the Father had done that at her mother’s house once when her mother had not been there.
In the Amended Initiating Application filed by the Mother on 25 February 2019, she sought orders for the parents to each pay half of annual private health care insurance for Y and X and half of Y and X’s extra-curricular activities.
The Court does not have the jurisdiction to make such orders other than by way of a Departure Order under the Child Support (Assessment) Act1989 (Cth). There is no application before the Court for a Departure Order and accordingly, the Court cannot make the orders sought by the Mother in this regard.
Presumption of Equal Shared Responsibility
Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
Both parties are seeking orders be made for them to have equal shared parental responsibility for Y and X.
Whilst they both currently have interim intervention orders against the other and both agree that their communication is very difficult, they agree that they are able to work together and make mutual child-focussed decisions in the best interests of Y and X.
This is perhaps best illustrated by the manner in which they are working together to assist X following the identification of his ADHD. They have been attending Ms G together, they have worked cooperatively in order to obtain NDIS funding for X and they both have put in place structures and routines in their respective homes so that there is a consistency of day-to-day care and routine in both their homes.
In all these circumstances I am more than satisfied that an order that these parents have equal shared parental responsibility for Y and X is in their best interests.
Consideration of Equal Time or Substantial and Significant Time
Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the court to consider whether it is in the best interests for a child to spend equal time or significant and substantial time with each parent.
Neither party is seeking orders that Y and X spend equal time with each of them. Such an order would not be practical given the Father’s roster. Further, it would not be in Y and X’s best interests for orders to be made that did not see X continue to live in the primary care of his mother, given I am satisfied she has been his primary carer throughout his life.
Both parties’ proposals would see Y and X spending significant and substantial time as defined in section 65DAA(3) of the Act as the Father would spend time with Y and X during the week, on weekends and during school holidays.
Conclusion
This matter involves two very good parents who have put forward proposals for the ongoing living arrangements for their two children Y aged ten, and X, aged six. Both parties have genuine and bona-fide reasons for why they are putting forward their proposals.
The crux of the dispute between the parties is the Father’s occupation. He has been a public servant for more than 15 years and as such, works on a rolling roster with four shifts on and four shifts off. This means that he does not work the same days in every week unlike the majority of people who have a Monday-Friday 9:00am-5:00pm type job.
Having to accommodate the Father’s rolling roster was a cause of tension and distress to the Mother during the relationship as she felt that she was required to try and manage her own career and business as a health care worker around the demands and constraints of the Father’s profession and that she was constantly controlled by the Father’s occupation. It is the Mother’s evidence that this was one of the factors that contributed to the demise of the parties’ relationship.
Post-separation, the Mother agreed to interim orders for Y and X to spend time with the Father that coincided with his rostered days off. This means that in every given week the time that Y and X spend with the Father changes. The Mother feels still unable to take control of her own life and that she continues to be subject to the Father’s work. This causes the Mother considerable stress which impacts on her Crohn’s disease. It is clearly an ongoing cause of genuine unhappiness and distress to her.
The Mother is therefore seeking orders that would see Y and X spend regular, unchanging time with the Father each week. Whilst it is accepted that the Father can make application for an administrative role within the Employer A that would see him work a Monday-Friday, 9:00am-5:00pm type job and she would encourage him to do so, it is the Mother’s evidence that even if the Father chooses to continue to work as he now does, such orders should be put in place and it would be incumbent upon the Father to make the necessary arrangements for the care of Y and X for those occasions where his roster requires him to be at work.
It is the Mother’s evidence that the certainty that such an arrangement would put in place for Y and X would be very much in their best interests, particularly given X’s recent diagnosis of ADHD and the recommendations of his treaters that X have consistency in routine to assist him to better manage his condition.
It is the Father’s evidence that he loves his job and that he is one of those very lucky people that gets to do something that they really want to do.
It is the Father’s evidence that he was a public servant before he met the Mother. She commenced a relationship with him knowing that he was a public servant. They decided to have children together knowing that the Father was a public servant, in the full knowledge of the practical implications of his roster.
It is the Father’s evidence that whilst he could make application for an administrative position within the Employer A, those positions are relatively rare and any such position is only for a period of up to two years maximum. Further, the Father’s evidence is he really doesn’t want to make application for such a position as that is not why he is a public servant and more particularly, that such a position would stymie his opportunity for advancement in the employer.
It is the Father’s evidence that he seeks that the current interim arrangements for Y and X continue as that enables him to be fully available for them when they are in his care and ensures that he is able to participate in all aspects of their lives and be a fully committed hands-on parent.
The Father refutes the Mother’s evidence that Y and X find the current arrangements confusing or that it provides uncertainty for them. He argues that they have only ever known him to be a public servant and that they are familiar with him working four days on and being available to them for the other four days.
It is the Father’s position that it is in Y and X’s best interests that he continue to be the hands-on parent that he is currently as this will ensure they will have the benefit of both parents being fully involved in their lives.
Understandably and quite sensibly, Ms G, X’s educational psychologist, chose not to express any opinion about which of the parties’ proposed living arrangements for X is preferable, noting this is a matter for the Court.
Ms G was very clear in her evidence that the consistency in routine needed for X is what happens on a daily basis in whichever parent’s homes X is in.
Ms S prepared a family report dated 12 November 2018. At that stage X had not commenced his schooling. In her conclusion Ms S expressed the view that whilst the current arrangements have strengthened Y and X’s relationships with both parties post-separation and allows for the active involvement of both parents, serious consideration needed to be given to the Father seeking work with the Employer A that affords him a flexible work arrangement that aligns with the routine of the school week for the children. Ms S acknowledged that whilst this proposal was only a temporary measure, that temporary measure for approximately one-two years was an attractive option in supporting X’s next developmental stage.
Ms S therefore put forward a recommendation to cover the next one to two years, which was for Y and X to live with the Father in week one from after school Thursday until before school Tuesday and from after school Thursday until before school Friday in week two.
Ms G commenced working with the parties in 2019 to assist them in implementing consistent routines across households in regards to parenting and supporting X.
Ms G also conducted a school observation of X on 6 March 2019, which was week five of the first term of Prep for X. Ms G reports X’s teacher is very happy with X’s progress since starting school and that his teacher reported no current behaviours of concern inside the classroom or in the playground. Ms G reports that X’s class teacher is, overall, very happy with X’s progress.
Ms G’s assessment of X and the progress he was making at school was discussed with Ms S when she gave vive voce evidence before the Court. It is fair to say that Ms S was pleasantly surprised with Ms G’s feedback. Ms S quite properly noted that an assessment of X after only five weeks of him being at school could not be considered to be conclusive, albeit it was a positive start. She stated that an assessment of X in six months’ time would give a clearer picture of his progress. Ms S however indicated that Ms G’s evidence was such that the recommendations in her report were not quite as strongly held by her as they were at the time that she made them.
Ms S also conceded that her recommendations only covered a one to two year period. She was not prepared to make any recommendations as to what Y and X’s living arrangements should be after that period, particularly in circumstances where the Father may have taken an interim administrative position and was transitioning back to his role as an active public servant .
What is very apparent in this matter is the parties continue to struggle with many of the issues that caused the breakdown of their relationship. The Mother finds the Father to be controlling and intimidating and her distress at continuing to have to “dance to his tune” is palpable. That the Father is somewhat indifferent to the Mother’s distress is also apparent from his evidence and there have been behaviours by him that don’t reflect well on him, particularly the action taken by him to have the Mother charged with breach of the intervention order.
Whatever the Father’s shortcomings as a partner may have been, it is very apparent that he wants to be a hands-on father and to be actively involved in Y and X’s lives. He argues that his roster actually allows him to be more actively involved in his children’s lives than other fathers that are bound to the 9:00am-5:00pm five-days-a-week grind.
Whilst I have considerable sympathy for the Mother and the difficulties the Father’s roster accords her, the reality is she entered into a relationship and had children with a public servant.
Whilst the Mother argues that the current arrangements are confusing and unsettling for Y and X, there is little evidence before the Court that supports this contention.
Both parents report Y to be thriving. She is doing very well at school, has many friends and has a number of extra-curricular activities in which she is engaged and which she thoroughly enjoys. In discussion with Ms S, Y indicated she didn’t find the current arrangements too difficult.
X’s difficulties have been well set out in this judgment. Interestingly, none of the professionals treating X have identified his current living arrangements as a factor contributing to, exacerbating or worsening his ADHD. Whilst they may well have been “sitting on the fence” to some degree as they are working with both of the parents very closely to ensure best practice arrangements are put in place for X, if those professionals genuinely held concerns about X’s current living arrangements, one would have expected that they would have raised those concerns with the Court in the best interests of X.
What is apparent from the Mother’s evidence is that she is the one who most struggles with the current arrangements and the difficulties it creates for her. These difficulties impact on the running of her business, the management of her day-to-day living, the management of the care of the children and more relevantly in controlling the level of stress that she encounters in her ongoing communication and engagement with the Father.
It is the evidence of Ms S that the Mother is managing this stress and that a continuation of the current living arrangements will not impact on her parenting of Y and X.
The Mother argues that the Father has been selfish in putting his job before his children by insisting that he continue to work in his profession in the manner that gives him enormous fulfilment and joy. I do not accept that it is selfish of the Father to want to continue in a job that he loves and one that he is very good at. Parents make decisions all the time for the advancement of their careers. They move interstate, they move overseas and in so doing they cause disruption, uncertainty and distress to their children’s lives.
Whilst the rolling roster on its face is somewhat confusing, it is actually very consistent as long as it is properly followed and the Father does not seek to vary arrangements to suit his own needs or accommodate his holidays.
Having considered both parties’ evidence and more particularly the benefit to Y and X in having both parents actively involved in their care to the maximum amount possible, I have formed the view that the outcome that is in their best interests is for there to be a continuation of the current arrangements. This will result in the time Y and X spend with the Father being when he is fully available to them and the time they spend with the Mother will enable her to continue in her role as their primary carer.
I am however of the view that the Mother needs to have certainty around school holiday arrangements and she should not be beholden to the Father’s roster during the holiday period. She should be able to plan a holiday and her life during the school holidays with certainty.
It will be incumbent upon the Father to make the requisite arrangements to have as much of the school holiday time off as is possible. If he is unable to do so, then for those short periods he will have to be responsible for putting alternative care arrangements in place for Y and X.
The parties’ communication and their co-parenting relationship is far from ideal. Ms S has recommended that they attend a Parenting Orders Program with “Family Life” to assist them in this regard. I agree with Ms S’s recommendation in relation to the necessity for the parties to attend such a program and orders will be made accordingly.
The Mother is going to be very unhappy with this decision and will no doubt feel that she continues to be required to live a life that is dictated by the Father. The Father will have to show a great deal more empathy than he has to date towards the Mother and the difficulties his profession cause her, both in the context of his communications with her and his expectation that she must always fit in with his job requirements.
It is hoped that the cessation of litigation between these parties will assist them to focus on the best way forward for their children and on how they can be the best possible parents for Y and X going forward. They must continue to shield Y and X from their conflict and continue to do that which they have been doing to date, which is to parent children who are progressing and thriving.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 14 June 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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