Macnair and Macnair - [2010] FMCAfam 510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACNAIR & MACNAIR

[2010] FMCAfam 510

FAMILY LAW – Children – final arrangements for care of children aged 8 & 5 – parties agree that they should have equal shared parental responsibility for the children – father seeks equal time arrangement – court required to consider equal time arrangement subject to children’s best interest and considerations of reasonable practicality – mother seeks arrangement which would see children spend time with father on alternate weekends and on the intervening Wednesday as well as on special occasions – family report writer recommends the children live in equal time arrangement – parties live approximately thirty kilometres apart on opposite sides of Adelaide – father engaged in full time employment – mother engaged in part-time employment – children attend school close to mother’s home – nature of parties’ communication skills – ability to solve potential parenting problems – effect of equal time arrangement on children – best interests.

Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA; 65DAC; 65DAE
Family Law Amendment (Shared Parental Responsibility) Act 2006

MRR v GR [2010] HCA 4
T & N [2001] FMCAfam 222
Goode & Goode (2006) FLC 92-286
Bright v Bright (1995) FLC 92-570
Astor & Astor [2007] FamCA 355

Applicant:

MS MACNAIR

Respondent:

MR MACNAIR

File Number:

ADC 3862 of 2008

Judgment of:

Brown FM

Hearing dates:

19 & 20 April 2010

Date of Last Submission:

20 April 2010

Delivered at:

Adelaide

Delivered on:

25 May 2010

REPRESENTATION

Counsel for the Applicant:

Mrs West

Solicitors for the Applicant:

Alderman Redman

Counsel for the Respondent:

Mr Heinrich

Solicitors for the Respondent:

S J McKinnon & Associates

ORDERS

The parties have equal shared parental responsibility for the children of the marriage [X] born in 2001 and [Y] born in 2004.
The parents are to consult with each other and to make a genuine attempt to resolve any disagreements arising between them about all decisions relating to major long-term issues pertaining to the children, which include but are not limited to the following issues:
·The children’s education (both current and future);
·The children’s religious and cultural upbringing;
·The children’s health;
·The children’s names;
·Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The children live with the parents as follows:
(a)During school terms
(i)with the father in alternate weeks from after school on Wednesday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday);
(ii)With the mother at all other times.
(b)During school holidays
(i)On a week-about basis during each short school holiday;
(ii)With the father from the conclusion of school on Maundy Thursday until 6:00pm on Easter Monday in 2011 and each alternate year thereafter;
(iii)with the mother from the conclusion of school on Maundy Thursday until 6:00pm on Easter Monday in 2012 and each alternate year thereafter;
(iv)With the father from 4:00pm on Christmas Day 2010 until 4:00pm on New Year’s Day 2011 and for an equivalent seven day period in each alternate year thereafter;
(v)With the mother from the end of the academic year in 2010 until 4:00pm on Christmas Day 2010 and for an equivalent period of time in each alternate year thereafter;
(vi)With the mother from 4:00pm on Christmas Day 2011 until 4:00pm on New Year’s Day 2012 and for an equivalent seven day period in each alternate year thereafter;
(vii)With the father from the end of the academic year in 2011 until 4:00pm on Christmas Day 2011 and for an equivalent period of time in each alternate year thereafter;
(viii)The children live with each of their parents for an equal period of time during the remainder of the long school holiday period in each year with the mother to have the first period commencing 4:00pm on 1 January 2011 and each alternate year thereafter and the father to have the first period commencing 4:00pm on 1 January 2012 and each alternate year thereafter unless the parties agree otherwise provided the father is able to obtain leave from his employment for the period the children are anticipated to be in his care otherwise the children continue to live with the mother for such periods.
(c)Special Occasions
(i)In the event that Father’s Day falls on a weekend that the children are not in the care of the father pursuant to these orders the children will spend time with the father on Father’s Day from 10:00am until the commencement of school the following Monday;
(ii)In the event that Mother’s Day falls on a weekend that the children are not in the care of the mother pursuant to these orders the children will spend time with the mother on Mother’s Day from 10:00am until the commencement of school the following Monday;
(iii)In the event that either of the children’s birthdays or the father’s birthday should fall on a day when the children are in the care of the mother, the children will spend time with the father as follows;
A.If it is a school day from 6:00pm until 8:00pm on that day;
B.If it is a non-school day from 4:00pm until 7:00pm on that day
(iv)In the event that either of the children’s birthdays or the mother’s birthday should fall on a day when the children are in the care of the father, the children will spend time with the mother as follows;
A.If it is a school day from 6:00pm until 8:00pm on that day;
B.If it is a non-school day from 4:00pm until 7:00pm on that day.
The parties are at liberty to make arrangements for the children to spend time with the other parent, independent of these orders at any other times and on any other conditions as they may agree from time to time.
All handovers for the children are to take place at the children’s school on school days and at the mother’s home on non-school days or at such other location or locations as may be agreed between the parties from time to time.
Both parties have telephone communication with the children at all reasonable times and the children are at liberty to telephone their parents at any time reasonably requested by them.
The mother and father shall;
(a)keep the other parent informed at all times of their residential address and contact details, including details of landline and mobile telephone numbers and email addresses;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors, who treat the children and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children. This order authorises any treating medical practitioner to release information concerning the children’s medical condition to the other parent.
The parents are directed, by virtue of this Order, to authorise the principal of each school attended by the children from time to time to give to each parent information about the children’s educational progress and any necessary information relating to extramural activities in which the children are engaged and supply each of them with copies of school reports, photographs, certificates and awards obtained by the children provided that each such document is to be supplied at the cost of the parent receiving it.
Each parent has the right to attend at the children’s school for all events that are routinely attended by parents, including parent-teacher interviews.
All applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Macnair & Macnair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3862 of 2008

MS MACNAIR

Applicant

And

MR MACNAIR

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Macnair and Ms Macnair are good parents. Their children are [X] aged eight and [Y] aged five.[1] Since the parties separated, in June of 2008, [X] and [Y] have lived mainly with their mother.
[1] [X] born [in] 2001 and [Y] born [in] 2004
The separation brought financial hardship for all concerned. The parties’ family home, in Suburb A, a southern suburb of Adelaide, had to be sold.
The mother and the children moved in with Ms Macnair’s parents, who live in Suburb B, an adjoining suburb to Suburb A. More recently again, the mother has bought her own home, also in Suburb B.
As a result, throughout the trauma of her parents’ separation, [X] has been able to continue to attend Suburb C Primary School, which is nearby to both Suburb A and Suburb B. More recently, [Y] has also been able to commence her education at Suburb C Primary School.
Mr Macnair is a [omitted]. During the parties' marriage, he was self employed. He worked long hours and had the responsibility for running a small business. This led to financial pressures and problems.
Now he is employed, by [T], which has its office in Suburb E, an inner suburb of Adelaide. It is Mr Macnair’s case that he now has shorter hours.
Mr Macnair has re-partnered. He and his partner Ms J and Ms J’s two year old daughter, [Z] live in a rented house in Suburb F, which is to the north east of the centre of Adelaide.
For understandable family reasons, Mr Macnair and Ms J see their future together in the northern suburbs of Adelaide. Mr Macnair’s family live there and it is convenient so far as the arrangements Ms J has with [Z]’s father concerning [Z]’s parenting. In future, Mr Macnair and

Ms J would like to buy a house in the northern outer suburbs of Adelaide.
Ms Macnair is employed as a [omitted] in Suburb G, which is to the north of Adelaide. She works 25.5 hours per week, during term times and has minimal work requirements during school holidays.
For obvious reasons, her hours of work fit in easily around [X] and [Y]’s school commitments. Ms Macnair’s mother takes the children to school on one morning per week and they spend some time in out of school hours care (OSHC), when necessary, but the time is minimal.
The parties agree that they should have equal shared parental responsibility for [X] and [Y], in recognition of the fact that they are both capable and loving parents, who are each committed to being as fully involved with parenting [X] and [Y] in future as possible.
In these circumstances, Mr Macnair would dearly love to have the children living in what is commonly called a shared care regime, whereby [X] and [Y] would move between their parents’ respective homes, on a week about basis.
However he recognises that the reality of the children’s lives is that they should continue at Suburb C Primary School, where they are happy and well settled. The children also engage in other activities, based in the southern suburbs, near where they currently live, which they enjoy and wish to continue. These activities include ballet, scouts and a church group. Their school friends live in and around Suburb C, Suburb B and Suburb A.
This means, if a shared parenting regime is inaugurated, Mr Macnair will have to deliver and collect the children to and from Suburb C, Suburb B and Suburb F. He will have to fit in these responsibilities with his employment at [T]. It will mean that for one week in every two, he will have to drive across the metropolitan area of Adelaide twice a day.
The mother, perhaps with some ambivalence, acknowledges that, in theory, it is likely to be in [X] and [Y]’s best interests to spend as much time as possible with their father. However, it is her case that this theory is not supported by the reality of the parties’ situation.
As such, it is her position that Mr Macnair’s work commitments; the location of his home; the children’s educational commitments; their extramural and social activities; and the onerous driving involved for the children; simply make Mr Macnair’s proposal unworkable and impracticable. Perhaps, more importantly, she contends that the parties’ relationship, as parents, is unconducive to an equal time parenting regime.
As such, she proposes that [X] and [Y] should continue to live predominantly with her and spend time with their father on alternate weekends from after school on Friday until the commencement of school the following Monday and in the other week of each fortnight from after school on Wednesday until school resumes Thursday morning.[2]
[2] This is the arrangement which has been in place since consent orders were made by the court on 10 December 2009.
Although this arrangement is not ideal, because it still entails some significant level of travel and disruption for the children, Ms Macnair believes that it is a workable outcome, which will ensure [X] and [Y] continue to have a warm and loving relationship with their father and to spend time with him, in a variety of settings.
From Mr Macnair’s perspective, the time proposed is simply inadequate for the children to be able to maintain and extend a meaningful level of relationship with him and so, it is not an arrangement which is calculated to be in [X] and [Y]’s best interests.
Mr Macnair concedes that the parties’ current living arrangements are not perfect for an equal time arrangement but it is his case that he has a sympathetic employer and his proposal is achievable, with the commitment and support of both the parents concerned.
Mr Macnair points to the fact that, in many parts of Australia, particularly the larger urban centres, many separated families have to grapple with similar logistic circumstances and it is the mantra of the age that parents, from all socioeconomic brackets, struggle to balance the commitments of work and family in an ever faster moving world. If these parents can make a shared parenting regime work, why not he and Ms Macnair, even if they do have their issues and areas of disagreement from time to time?
One of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
Australia is a highly mobile and modern society. It also has a high rate of divorce. It is a common phenomenon that separated parents wish to pursue career or personal opportunities in a different location to that in which they lived whilst in a relationship with the other parent concerned. These considerations must be factored into the matrix provided by the Family Law Act 1975, in circumstances where separated parents are in dispute about appropriate parenting arrangements, for their children, following separation.
The issue in this case can be boiled down to one central consideration – what is workable and practicable, for these two children, given that it is approximately 35km between the father and the mother’s respective homes and very often this distance will have to be negotiated through Adelaide peak hour traffic and the predominant activities, particularly educational, in which the children engage, are based around the mother’s home rather than the father’s.
Both parties can muster persuasive arguments, based on the provisions of the Family Law Act 1975, as to why his or her position is to be preferred. As such, the case is a finely balanced one. Necessarily, there is no right or wrong answer to the question posed by the parties’ competing applications.
I must exercise a discretion, vested in me by the applicable legislation, which is to be informed by my view of how [X] and [Y]’s interests will be best served in future. However, I cannot ignore the reality of their family situation.[3] Essentially, I must consider whether equal time parenting is feasible, given the logistical issues arising and the nature of the parties’ relationship with one another.
[3] See MRR v GR [2010] HCA 4 at [15]
Different minds can reach different views about the issue involved and it is difficult to say one view has more validity than another. As such, when I make the decision required, I am concerned that it will create a perception that one party has triumphed over the other and that one parent’s views are more important or have more validity than the other’s.
This is not my intention. Rather, there must be a formal mechanism to resolve the dispute between the parties, who are citizens as well as parents. One of the essential ingredients, of a well ordered society, is that it provides its citizens with mechanisms for the rational resolution of disputes between them according to the rule of law.
The court’s decision is one such mechanism, although the subject matter of the dispute concerned is idiosyncratic and deeply personal to the parties concerned. I am also well aware that the resolution I will impose on the parties affects others, who have not been heard by me – namely [X] and [Y]. They to, will have to live with the consequences of the decision.
I hope the resolution of the various issues, in this case, will not cause any undue deterioration in the parenting relationship between the parties and each of them will cope with the decision, which must be made and so, as best as possible, any potential difficulties for the two children concerned will be minimised.

The evidence

The mother is the applicant in the proceedings. She relies on two affidavits sworn by herself.[4] The father is the respondent. He relies on three affidavits sworn by himself[5] and one affidavit of Ms J.[6]
[4] See Ms Macnair’s affidavits filed 7 September 2009 and 1 April 2010 respectively.
[5] See Mr Macnair’s affidavits filed 31 March 2009, 28 September 2009 and 10 November 2009.
[6] See Ms J’s affidavit filed 28 September 2009.
Besides the parties themselves and Ms J, there were two other witnesses. The first was Mr S. Mr S is the Christian pastoral support worker at Suburb C Primary School. In the past, he would have been known as the school chaplain.
Mr S did not provide an affidavit in the proceedings. Rather, he came to court because Ms Macnair had issued a subpoena requiring him to come to court and give evidence. Mr S has been providing counselling for [X] at school.
The other witness concerned was Mr R, who is a psychologist. Mr R was asked to provide a family report to assist the court to determine the best outcome for [X] and [Y]. His family report was dated 27 August 2009. He was subsequently asked to update his report and did so on 1 March 2010.
Both parties seemed to me to be pleasant and intelligent people. They each struck me as being competent and caring parents. Certainly, they are each devoted to [X] and [Y]. Accordingly, I do not think that this is a case which turns on credit, in the sense that one party’s evidence should be automatically preferred to the others.
Necessarily, given their different perspectives and personalities, the parties’ have different views about all manner of issues to do with the children. These areas of contention are focussed on the following areas:
·How well does the parties’ current relationship cope with the necessity for the children to move between the mother’s house at Suburb B and the father’s house in Suburb F regularly;
·Mr Macnair thinks it is adequate, if there is a bit of give and take on both sides. Ms Macnair thinks the practical issues are too daunting to make the arrangement preferred by the father work, particularly as she and Mr Macnair seem to have no facility to communicate effectively with one another;
·The mother contends that the father is consistently unreliable in respect of being on time for handovers;
·The father contends that arrangements have been fluid in the past but he has remained focussed on the children, particularly as he has wanted to maximise the time they spend with him;
·The mother contends that the father is unresponsive to her requests about the children. The father contends that the mother considers him unresponsive only when he does not automatically agree with what she wants;
·Both say the other is only prepared to be flexible about arrangements for the children, when it suits him or her;
·The mother is critical that the children have missed some ballet classes and some of their friend’s birthday parties, when they are with their father, which has distressed the children. In her words: the father has shown he cannot commit to the children’s social and leisure commitments by being on time or reliable;
·The father asserts that he will maintain the children’s essential regular activities but sometimes it is more important that they relax and just hang out with him, which sometimes means that they must miss some of their more inconsequential social commitments;
·The father also asserts that when he has been late, it has not been significantly so. The import of most of his evidence being that the mother is unduly punctilious and overly controlling of his relationship with the children;
·The mother contends that the father’s work commitments are far more intrusive into his life than he would have the court believe;
·The father contends that he has a sympathetic employer, who will allow him to meld his work commitments around the needs of the children, particularly if they are parented in an equal time regime;
·The mother contends that the children find the travel between Suburb C and Suburb F tiring and boring. This has had consequences for [X]’s performance at school, particularly her level of concentration;
·The father contends that the children have an enjoyable and productive time with him in the car. The time being utilised in conversation and on occasions to practice [X]’s spelling and other homework. On other occasions they listen to music or play word games;
·The mother’s belief is that the journey is a tension filled one, with the father often having to field work queries on his mobile phone. She refutes the suggestion that the children enjoy the travel involved;
·To the contrary, it is Ms Macnair’s position that the children actively dislike the car travel involved in moving between Suburb F and Suburb C and find it exhausting;
·Mr Macnair concedes that [Y] sometimes falls asleep in the car, but from his perspective, this is perfectly normal and something she has always done. He says, at worst, the drive involved is about an hour in duration and as such, cannot be regarded as extraordinary. He says the calls he takes are usually routine and quickly dealt with;
·The mother contends that a greater financial burden to support the children falls on her shoulders, because she pays for ballet lessons and other extramural activities;
·The father counters by pointing out that he pays the amount of child support levied against him and is happy to pay for any of the children’s activities when they are in his care;
·The mother has catalogued the evenings, when she says the children have been with their father and they have not had an evening bath;
·The father denies any suggestion that he has neglected the children’s essential hygiene. Rather he asserts they may not have always had their hair washed but have always been bathed;
·Again the mother has catalogued the evenings when she says the father has not ensured that the children have completed their homework;
·The father disputes this assertion. He counters by saying that he may, on occasions, have failed to sign the children’s readers but this does not mean he has not read with the children;
·The mother complains that the children have missed [their church group] on Friday evening;
·The father agrees but says it was necessary as otherwise the children would have been late home;
·The mother is critical of the father for not being more responsive to [Y]’s food allergies and fussy eating habits. She points out that on one occasion, the children only had pancakes for breakfast;
·The father asserts that he is well aware that [Y] is allergic to nuts. He agrees [Y] is fussy about what she eats. He says the children voluntarily chose to eat pancakes for breakfast one Sunday;
·The mother complains that [Y] was exposed to a book on piercing in September of 2008;
·The father acknowledges that [Y] had the book but had raided his drawer to find it and it was instantly removed from her;
·The mother complains also that the children have been shown a DVD about tattooing;
·The father acknowledges this to be so, but says it was a documentary program, which arose because [X] was curious about how tattoos are done, particularly because he himself has a tattoo;
·The mother asserts that [Y] did not have her booster seat on one occasion. The father asserts that this was a one off situation and ordinarily both he and Ms J have access to booster seats;
·The mother contends that the children were frightened when the father moved out of his parents’ home into his current rented accommodation without telling them earlier;
·The father says he wanted to surprise the children by his change of address. He disputes the children were scared by the move itself. Rather he says [X] was discomforted that she did not have her normal teddy bear, which had been left behind at her mother’s house on the evening in question;
·The mother complains that on 4 January 2009, whilst at their paternal aunt’s home, the children had to sit around with no knickers on whilst their clothes were washed;
·The father says the children had got dirty, whilst playing in the park. His sister had washed the children’s knickers only because they were dirty. The children were waiting around, in their other clothes, for their knickers to dry.

I have outlined these various matters, not because I consider that they each need to be judicially resolved and a finding of fact made about them but rather to emphasise that most of these concerns deal with the ordinary minutiae of domestic life. They do not go to issues related to the essential well being of the children.
This is not a case about drug or alcohol abuse; psychiatric dysfunction; or the potential for children to be exposed to some serious form of neglect; as so many cases which come before the courts are. It is a case about organisation.
The various areas of contention between the parties, some of which have been outlined above, indicate to me that the parties are different both in personality and in their views about parenting. The mother has been able to catalogue meticulously what she sees as the father’s failings as a parent. As such it seems to me that she is likely to be highly organised, as both a person and a parent.
With the greatest of respect to Ms Macnair, many of her criticisms of Mr Macnair are not in the more serious category of concerns to do with children. They are also reflective of the parties not being able to exchange information effectively and perhaps each of them not being fully respectful of the other’s point of view – most eloquently exemplified by Mr Macnair wanting to spend as much time as possible with the children but his wishes in this regard resulting in the children coming home to Ms Macnair an hour or so later than had been earlier scheduled.
The father sees the mother as being petty and controlling. The mother would say that the father is slack and out of touch with what is really required to be a parent because she has put in the hard yards to date and he is only concerned about his own feelings and wants.
It would seem to me that the father is probably more laissez-faire in his parenting, although in his evidence he has said that he believes that he is stricter with the children than the mother. However it does seem to be the case that he is not as disciplined, in respect of time and organisational matters to do with the children, which no doubt Ms Macnair finds highly irritating.
What is clear to me is that the parties bring different attributes and have different strengths in their parenting of [X] and [Y]. However it is also apparent that each is able to discharge the essential nuts and bolts of parenting, although they do so with different emphasises and priorities. It is in this sense that I reiterate my opening finding that both of them are good parents and as such, each has much to offer the children. They are however likely to be good parents in different ways.
These impressions are not made to suggest any criticisms of the parties themselves. They have been separated for some time now. Mr Macnair has re-partnered. Necessarily the parties now lead different lives, with different preferences and priorities. They bring different personalities and backgrounds to the parenting of the children concerned. As a result, they bring different but quite possibly complementary attributes to the parenting of the children.
In such circumstances, it is inevitable that disagreements will arise between them and it would be unnecessarily utopian to think those disagreements could always be resolved amicably. Particularly as it is my impression that both are capable of stubbornness. The parties’ different personalities inform their perceptions of one another and shape what each believes is reasonable, in respect of the children, as with everything else.
In my view it is not necessary for me to resolve the vast majority of the evidentiary issues arising between the parties. It will not be helpful to either them or their children if I make unhelpful (and perhaps hurtful) findings of fact, which do not go to the essential issue of the case, which is what arrangement is going to work best for [X] and [Y], given their parents’ current circumstances.
As such, this is not an exercise into who is the better parent per se. It is certainly not an inquiry into who of them has the more engaging personality or an exercise centred on achieving an outcome which each perceives as being fair to him or her. Rather the question arising for the court is “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared [between their parents], or deeply divided?”[7]
[7] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
In the overall circumstances of this case, neither party is likely to be completely objectively reliable. Too a large extent, each party has a barrow to push or an axe to grind as a result of his or her perspective on what is the appropriate outcome of the case. For obvious reasons, the father is likely to minimise the difficulties arising for the children from his preferred outcome and downplay his own previous shortcomings, whilst the mother is liable to maximise the problems which will come up, if there is an equal time arrangement.
Sadly the children, particularly [X], will be well aware of the conflict between their parents and each must be affected by it to some degree. This in turn, must have consequences for the loyalty the children feel for each of their parents. These loyalties are likely to be challenged by the dispute between their parents, which may cause emotional distress and tumult to be occasioned to the children.
In these circumstances, evidence from independent and objective sources is likely to be helpful to the court in gaining a true picture of how [X] and [Y] are travelling at the moment and whether the regime proposed by Mr Macnair will work effectively and so be in their best interests. The court has two such sources of evidence in this case.

Mr R and Mr S.

a) Mr R’s evidence

Mr R is an experienced psychologist, particularly in the area of assessing children and their needs, where there is a significant level of dispute between their parents. He has been associated with the Family Court since 1989 and, during that period, has written literally hundreds of family reports.
Mr R had a significant advantage over me, in this case. He was able to observe [X] and [Y] directly and see them engaging with each of their parents. In addition he was able to speak with both of the children.
Accordingly, his report is based on a direct and unfiltered experience of the children. In these circumstances and given his obvious expertise, his report must be given a significant level of weight by the court.
In addition and somewhat unusually, Mr R was able to review the family on two distinct occasions, separated by a period of about six months.[8] As such, he was able to interview and observe the children on two occasions.
[8] Mr R’s first report was prepared on 27 August 2009, after interviews with the parties’ and children on 12 August 2009. His second report was dated 1 March 2010 and was completed following interviews and observations with the parents and children concerned on 26 February 2010.
One of the reasons why Mr R was asked to revisit the family was that Ms Macnair did not accept the validity of some of Mr R’s views and recommendations. She was concerned in particular that he had not adequately gauged the feelings and views of [X] and had overestimated the parties’ capacity to make an equal time arrangement work.
Notwithstanding Ms Macnair’s strongly stated but rationally based objections to an equal time parenting regime for [X] and [Y], in both of his reports, Mr R remains in favour of such an outcome, following on from the making of an order that would confer equal shared parental responsibility, for the children, on Mr Macnair and Ms Macnair.
Ancillary with this principal recommendation, Mr R recommended that the children should spend regular periods of time, with each of their parents, during school holidays and on special occasions. The object of his recommendations being that the children should be able to engage with both of their parents, as much as possible, in a wide range of contexts and settings.
I do not think that Mr R can be regarded as a biased or unthinking zealot, who is always blindly in favour of shared parenting in every case. The tenor of both his reports and oral evidence is that the issue is a finely balanced one. As such, he would not be professionally dismayed if the court adopted what he characterised as a “cautious” approach to equal time parenting.
However, in these circumstances, he would recommend that the children live with their father, during term time, from Wednesday after school until Monday morning in the alternate week of each fortnight and live with their mother for the remainder of the time. The basis of this recommendation being that the current regime does not permit the children to spend sufficient time with their father to ensure that they have a fully meaningful relationship with him.
Mr R characterised the dispute between the parents as being “unusual”, given its narrow focus. It was also a case which Mr R thought was out of the ordinary run of cases, which came before the court, because there were no issues raised in it relating to family violence or allegations of seriously compromised parenting.
In summary, Mr R described the parties as follows:
The parents present as respectful of each other and appear to be able to maintain a civil, workable relationship in parenting the children. Although they differ in relation to some aspects of their parenting, such as discipline and routines, these differences in my opinion are not particularly significant, and in many cases would be found in families where the parents remain comfortably living together.[9]
[9] See first family report at paragraph 17
Accordingly, from Mr R’s perspective, the case was one largely focussed on the overall practicality of an equal time arrangement for [X] and [Y], given the current circumstances of the parties and the children.
Mr R conceded that different minds could have different views about the issues in question, particularly the viability of the travel involved and it was up to the court to make the appropriate findings, after it had assessed all the evidence available, through the lens of the court process.
Given his extensive experience, Mr R has obviously seen many parents, post separation, when they have begun the process of litigating arrangements about their children. In this sense, Mr R has many models against which to compare Mr Macnair and Ms Macnair. He summarised them as follows:
·Both were competent and caring individuals, devoted to their children;
·Both were in tune with the emotional needs of their children and were child focussed and capable parents;
·Their communication was limited, but the conflict content of it was low;
·This communication was characterised as being not ideal but adequate;
·Each parent, but particularly Mr Macnair, had the capacity to withdraw from any emotional outburst, arising from a difference of view, with the other;
·As such, the children had not been exposed to overt conflict between their parents;
·The dispute between them, regarding the viability of a shared care regime was genuine and not influenced by any secret or ulterior motives, relating to psychological issues arising from the end of their marriage.
Given these factors, Mr R assessed the parties as being outside the normal range of separated parents, who approached the court to resolved parenting issues arising between them. I agree with this assessment.
In particular, Ms Macnair had few serious concerns about the father’s ability to parent the children adequately. For his part, Mr Macnair described Ms Macnair to Mr R as being a “fine” parent. It is the usual experience, of both the court and court appointed experts, to find parents who are focussed on criticising the other, in proceedings such as these, rather than making any positive comments.
Given these factors, in his discussions with each of the parents, Mr R focussed primarily on issues related to the practicality of an equal time regime. These issues included the following areas:
·The children’s need for stability and continuity of routine;
·The distance between the parties’ respective homes and the implications of this, particularly in terms of maintenance of the children’s social networks and recreational pursuits;
·The mother’s perception that the father was not punctual;
·The mother’s perception that the father had less family “back up” to assist him make the shared care regime work;
Mr Macnair confirmed to Mr R that the drive between the households could be onerous at times, but as he and the children were able to chat during it, he did not think it could be regarded as being entirely wasted time or an imposition on the children.
Mr R acknowledged that, as he did not live in Adelaide, he himself had only a broad understanding of the geographical and practical considerations arising. He agreed that travel, up to an hour, each way, was probably regarded as being potentially onerous for children of [X] and [Y]’s ages, but for Mr R, a more important consideration was “what is happening [for the children] during the trip?”
Mr R also conceded that it was a “very fine judgment call” as to whether the driving was too much for the children to engage in for one school week in every two. As such, Mr R said he had found it to be a very difficult issue to resolve definitively one way or the other. I also agree with this assessment.
The issue of missed birthday parties was raised by Ms Macnair, with Mr R, as being an issue of concern both to her and the children. Mr R was not greatly concerned if the children missed one or two birthday parties. For Mr R, it was a question of balance. The social needs of the children, to engage with their friends, needed to be balanced with the opportunity to spend significant time with a parent.
Under the current regime, Mr R characterised the time the children spent with their father as being “very limited”, given the viability and importance of that relationship, particularly the love the children each had for their father.
The implication of Mr R’s evidence being that it was important for the children to spend as much time as possible with their father, within limits. This is Mr Macnair’s position. It remains a bone of contention between the parties.
Mr R did not underestimate the importance to the children of maintaining social connections with their peers. Something, which was likely to become more important, as they grew older. In this context, he considered it somewhat “unusual” that none of the children’s friends had, as yet, visited [X] and [Y] at their father’s home at Suburb F.
From Ms Macnair’s perspective, this is a significant factor indeed. She believes that it is just too difficult for [X] and [Y]’s school friends to travel from the suburbs to Suburb F to have sleep overs or other social occasions with the children and this omission will lead to [X] and [Y] feeling a sense of social dislocation.
One of the noteworthy aspects of the first family report was that [Y] took little part in it. She told Mr R that she did not want to talk any more. This was also largely the position, as far as she was concerned, in the second interview. [Y] was described as being “distracted” and so not amenable to interview.
[X] however did engage with Mr R on both occasions and was apparently content to express her views and feelings to him. These views, and what is shaping and influencing them, are central to this case.
[X] was described as being a pleasant and confident child. Mr R also characterised her as being “a bit of a worrier”. Both [X]’s parents think of her as being a “deep thinker”.
As will be evident from Mr S’s evidence, it is clear that she has recently had a lot on her plate emotionally. Recent changes she has had to cope with include her parent’s separation, moving from her long term family home and the death of her maternal grandfather.
[X] spoke warmly and lovingly of both her parents. She also thought that household rules were broadly similar at both her mum’s and dad’s. She expressed no reservations about either Ms J or [Z], describing the former as “nice”.
Clearly, by now, [X] is familiar with the drive between her parent’s households. At the first interview, she described the drive as being “long [but said she had] gotten used to it”.
Like her mother, [X] raised concerns about missing birthday parties. She was also worried about being potentially late for school, when she was staying with her father and about the possibility of missing mid-week recreational activities.
Given her temperament, Mr R considered these preoccupations were to be expected. He thought that [X] would be a child who would worry about punctuality and about missing activities. However, notwithstanding these concerns, [X]:
“Clearly indicated [to Mr R] that she would like to have more time with her father. She suggested that “a little bit more time” would be “alright” and when prompted about what she meant by “a little bit” she suggested “maybe” staying over for the Sunday and Monday nights on the weekends she spent with her father.”[10]
[10] See first family report at paragraph 39
The parties’ respective applications, including issues to do with the distribution of matrimonial property, had originally been fixed for final hearing in October of 2009. For a variety of reasons, the hearing did not proceed as scheduled.
In between Mr R’s first and second report, there had been some significant changes of circumstances. These included the following:
·Ms Macnair had moved out of her parent’s home, with the children and had purchased her own home;
·As a result, the children now each had their own room, more space and were feeling more settled;
·The children’s paternal grandfather had died in September of 2009, after a long illness, shortly prior to the children and their mother moving;
·Mr Macnair and Ms J had begun to live together;
·As a consequence, Ms J had begun to play a more active role in the children’s lives. From both parties’ perspectives, this had been a positive thing. Ms Macnair commenting that the children “talked very nicely” about Ms J;
·As a result of the recommendations of the first family report, the children’s time with their father had been extended and they were now spending four nights per fortnight with him;
·The parties had begun to use a communication book.
Against this background, Ms Macnair expressed her concern that Mr R had not been fully apprised of what arrangements [X] actually preferred. She described [X] as being “scared” of her father and fearful of upsetting him, presumably by expressing any dissent from his preferred outcomes.
Mr R’s impression of [X], at the second interview, was of an anxious child, who presented in a “pseudo-mature manner”. She expressed some apparent concerns about the possibility of spending more time with her father in future.
These concerns included the following:
·If the children spent more time with their father, they would not be doing the things they enjoyed, such as going to christenings, Christmas parties and scouts;
·Her mother’s social network was more extensive than her father’s was;
·[X]’s friends would not come and visit her at her father’s home, due to the distance involved.
In particular, Mr R noted the following verbatim comments from [X]: “We don’t do things with Daddy that we’ve grown up with … that we’ve been brought up with … he’s trying to stop it. … I’ve got to go with what my heart tells me, what’s right for me, not what’s right for him.”[11]
[11] See second family report at paragraph 23

Mr R considered these comments to be preternaturally mature for an eight year old child, even a bright one. In these circumstances, Mr R was concerned that [X] may have been influenced, in some way, by her mother’s strong opposition to an equal time arrangement. Certainly, it is Mr Macnair’s perception that the mother has “putting things into the children’s heads”.
In any event, at the conclusion of his second interview with her, [X] expressed to Mr R a desire to keep the current arrangements in place. Her rationale for such a view being that it would only make sense for there to be a week about arrangement if Mr Macnair lived in walking distance of her mother’s home.
In his second report, Mr R noted that [X]’s willingness to express a stronger view about her preferred outcome constituted a significant change of circumstances. However, Mr R cautioned the court about putting too much emphasis upon this view. He wrote as follows:
“The extent to which her [X]’s views can be accepted though is open to question given her age and maturity and the questionable degree to which she has been influenced by her mother in forming these views. I do not necessarily believe that Ms Macnair has intentionally sought to influence [X]’s attitude against the father, or to sway her views in relation to equal time, but it appears that whatever the nature of the conversation she has had with [X] it has led [X] to align herself with her mother’s view of the current issues. As a result it is difficult to assess what weight, if any, should be placed on [X]’s views given that her views seem to arise largely from her perception that she needs to be loyal to her mother, in particular.[12]
[12] Ibid at paragraph 27
As I say, I do not think that Mr R can be regarded as an undiscriminating advocate for equal time parenting in every case. His recommendation for it, in the current case, is hedged with qualifications and provisos, but it is also the product of some thought and a consideration of the applicable literature, some of which was created prior to the amendments of the Family Law Act 1975 brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Prior to these amendments, both this court and the Family Court had displayed considerable caution before making orders for equal time parenting. The general consensus being that such regimes should be ordered only if the court was satisfied that a number of specific criteria were satisfied.[13] Some of these considerations have been picked up by the provisions of section 65DAA (5).
[13] See T & N [2001] FMCAfam 222 per Ryan FM (as she then was) at 34
In his first family report, Mr R made reference to some of the literature, which underpinned the cautious approach to shared parenting utilised by the court in cases such as T & N, particularly the work of Smyth. Mr R categorised shared time parenting as relatively rare, but viable in cases where there was:
·Geographical proximity between the homes of the parents concerned;
·The parents concerned were able to develop a business-like working relationship;
·The equal time arrangement was child focussed, so that the children were kept out of the middle of either disputes arising between their parents or any decision making required;
·Both parents had a commitment to make the shared care arrangement work;
·Family-friendly work practices for both parents concerned;
·Financial security. This was particularly relevant for women;
·The mother having confidence that the father was a competent parent.[14]
[14] See first family report at paragraph 41
One of the consequences of the shared parental responsibility amendments to the Family Law Act 1975 is that in cases where the presumption of equal shared parental responsibility applies, the court is directed to consider equal time parenting as the first possible outcome of any proceedings between parents.
The Full Court has directed that such a process of consideration is to be an active rather than a tokenistic one and as such, is more likely than not to lead to a situation where an equal time regime becomes the norm rather than the exception.[15]
[15] See Goode & Goode (2006) FLC 92-286 at paragraph [64]
Against the background of these legislative changes, some academic writers, notably M & C have sounded notes of warning regarding the possible detrimental emotional consequences for children of shared parenting regimes, particularly in circumstances where there is significant parental conflict present.[16]
[16] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
In a longitudinal study, funded by the Commonwealth Attorney-General’s Department, Professor M has studied the mental health of the children of separated parents. Amongst the factors, identified by Professor M and her colleagues, as leading to high levels of emotional distress for such children were ongoing, high level conflict between the parents concerned and ongoing significant psychological acrimony between the parents.
Professors M and C have reported on this data, and data from other Australian studies, in the context of the current family law legislation as follows:
“…the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’⁶⁰and the containment of acrimony may prove to be central benchmarks.”[17]
[17] Ibid at 14
From the more recent literature, Mr R delineated a number of risk factors, the presence of which was likely to be counter indicative of an equal time arrangement for the care of children. The factors were as follows:
·Low levels of maturity and insight in the parents concerned;
·One parent had a compromised capacity to be emotionally available for the child;
·Ongoing, high level conflict between the parents concerned;
·Ongoing significant psychological acrimony between the parents concerned;
·The child was perceived to be at risk, by one parent, in the care of the other;
·The children concerned were under ten years of age;
·The child was not happy with a shared time arrangement;
·The child’s experience was that his/her parent was poorly available.
It was Mr R’s assessment that the present case did not present any of these significant risk factors but rather met the profile, as identified by Smyth, of a family where equal time parenting was a workable regime. In particular, Mr R considered that the children’s need for stability and routine could be met by them changing households every Friday. He considered this to be a routine readily understandable by most children and one which would require minimal adjustment for [X] and [Y].
However, Mr R also noted that considerations of logistics and practicality were also highly relevant to the appropriateness of an equal time parenting regime. In this regard, he reported that the parties had provided quite different estimates of the time taken to drive between Suburb B and Suburb F. Mr Macnair indicating that it took between 30-40 minutes and Ms Macnair believing it took between 50-60 minutes.
As has previously been indicated, Mr R was troubled by what could be regarded as a reasonable amount of time for the children to be travelling twice each day. It would seem to be his view that what was reasonable fell somewhere between the mother’s pessimistic view and the father’s more optimistic one. In this context, Mr R wrote as follows:
“A relevant issue here is what is considered “reasonable” in terms of the amount of time the children spend in a car driving between households and going to and from such events as birthday parties. Generally, it seems that the mother’s view is that 50 minutes is too long, while the father’s view is that 40 minutes is acceptable. Although this may be overly simplifying the issue it highlights the question of what degree of proximity is required between two households to make shared equal time parenting a practical and viable option.[18]
[18] See first family report at paragraph 48
In summary, at the end of his first assessment of the family, Mr R was concerned that the children were not spending sufficient time with their father and [X], in particular, yearned to spend more time with him, although she had fallen short of expressing a preference for equal time.
Although he had some reservations about an equal time arrangement for [X] and [Y]’s parenting, Mr R did not consider that the parental dynamic or any particular idiosyncratic considerations to do with the children concerned necessarily ruled out such a regime in this case.
Accordingly, in support of his recommendation that the court give earnest consideration to an equal time regime, Mr R wrote as follows:
It is my view that a shared equal time parenting arrangement has much to offer these children, and although concerns have been raised regarding the logistics and practicalities of how this might work in the current situation, these are not necessarily concerns that should rule out the future possibility of the children having a meaningful relationship with both their parents.[19]
[19] Ibid at paragraph 50
As with their respective reports as to how long it took to drive between Suburb B and Suburb F, the parties had different views, by the time of the second family report, of their facility to communicate effectively with one another.
The mother reported to Mr R that communications were frequently difficult. On the other hand, the father indicated that communications were much improved, citing the use of a communication book and more telephone discussions between the parties as proof of that improvement.
Notwithstanding [X]’s apparent change of view and Ms Macnair’s continuing opposition, at the end of the second family report, Mr R remained broadly in favour of an equal time arrangement for [X] and [Y]. He wrote as follows:
“In considering future parenting arrangements I am mindful that the earlier report suggested that equal time parenting was a viable option for this family and that on a review of the empirical evidence there was much to suggest that such an arrangement could work to the benefit of the children. In my opinion the changes that have occurred in this family’s situation are not such as to cause me to re-consider the merits of the recommendation for equal time that was made in the earlier report.
Although the mother has reported that communication is not as good as it may appear to an observer such as myself, it is my belief that communication between the parents is at least adequate for the purpose of facilitating a shared parenting arrangement.
The parent’s living arrangements have stabilised since the earlier report was prepared which means that the issue of the distance between the parent’s households becomes a more pertinent issue in considering how an equal time parenting arrangement might work. It is evident that this will impact to some extent on the working of such an arrangement, but the extent of the impact is largely a matter of conjecture that revolves around what is a reasonable expectation regarding the distance that children and parents should travel to make a shared parenting arrangement viable. There is no clear answer to this question, but part of the answer perhaps involves consideration of the extent to which the parents are able to be child-focussed, flexible and cooperative in addressing any problems that arise from travelling back and forth. In my opinion there is evidence that the parents have this ability to some extent now, and that the ability may improve if they are required to work within the parameters of a shared parenting arrangement.”[20]
[20] See second family report at paragraphs 30-32
In my view, it may ultimately prove to be the case that Mr R has been unduly panglossian in his advocacy of an equal time regime. As he himself indicates, its success depends, too a very large extent, on the facility of Ms Macnair to get over any irritation she may feel as a result of the inauguration of a regime to which she is vehemently opposed.
The future success of the arrangements requires her to work through any potential difficulties, by being child focussed and on her being willing to solve potential problems, which she is likely to feel have been foisted on her unnecessarily by the father, whom she regards as often inflexible and frequently unpunctual. I am concerned that it may be imprudent of me, in the circumstances of this case, to attribute such utopian parenting attributes to Ms Macnair, although I otherwise regard her as a worthy and committed parent.
Although I consider that, with sufficient good will and application on both sides, most parenting arrangements can be made to work and most potential problems solved, I also consider that I must be careful not to attribute an unreasonable level of altruism to Ms Macnair, in how she will adapt to an equal time arrangement in future and what the implications of this will be for [X] and [Y].
Ms Macnair has made it very clear that she regards an equal time arrangement, in the current circumstances of the parties, to be foolhardy and unworkable. In my view, she cannot be regarded as objectively unreasonable for holding such an opinion. To the contrary, Mr R regards the dispute between the parties to be genuine one and not one motivated by considerations of parental separation politics.
In these circumstances, it seems a big ask of her to require her to put her reservations about the equal time arrangement to one side and remain child-focussed, flexible and cooperative so that an arrangement, to which she is vehemently opposed, can be made to work.
Rather, I fear, when problems in such an arrangement inevitably materialise, given the different personalities of the parties concerned and the pragmatic difficulties of the father’s work roster and the distance between the two homes, the mother will succumb to the very human tendency to say to the father “I told you so”. As such, an equal time arrangement, in the current circumstances of the parties, may generate more rather than less conflict between the parties.
However, the other central consideration, arising from Mr R’s report and recommendations, is that it is likely to be in the best interests of [X] and [Y] to spend more rather than less time with their father, regardless of the logistical considerations arising. Certainly, it was

Mr R’s view that the current regime was inadequate to maintain a sufficiently meaningful and intimate level of relationship between the father and the children concerned and, as such, needed to be extended. I agree with this assessment.

b) Mr S’s evidence

Mr S was one of those witnesses, who immediately presents as a thoroughly decent and caring human being. He is currently employed as the Christian pastoral support worker at Suburb C Primary School. In less sophisticated times, he would have been known as the school chaplain.
Mr S has qualifications in what he categorised as “basic counselling”. He has a bachelor of ministry degree, which is equivalent to a three year undergraduate arts degree. He has been at Suburb C Primary School since term 4 of 2007.
He began seeing [X], in a counselling role, in July 2009. [X]’s teacher had recommended his involvement with her because her performance in the classroom was suffering, particularly so far as her concentration was concerned.
Mr S saw his role as supporting [X], who had been through a rough patch emotionally during 2009. Her parents had separated; she had had to leave her family home; and she had been living with her grandfather, whilst he was suffering a terminal illness. Mr S saw [X] about once a fortnight during the second half of 2009.
[X] has also begun to seek out Mr S, at school. Mr S runs a gardening program at the school as well as organising a survey of the bird population of the school yard. [X] has been involved in these activities. As such, Mr S thought he had a good relationship with [X]. He said in his sessions with [X], he mainly listened and let her set the agenda, whilst he tried to understand what was going on in her life.
Mr S thought [X] had “grief issues”, as a result of the tumult in her life, particularly that she had had to leave her former family home under difficult circumstances. He also considered that conflict between her parents was a major issue, so far as [X] was concerned.
During the counselling of last year, [X] had told Mr S that her father lived about an hour away from where she lived with her mother. Mr S’s impression was that most of [X]’s life “happened with mum” although she had spoken about some “fun times” with dad.
Certainly, in the early stages of the counselling, [X] had said that she did not enjoy the long drives to her father’s home, particularly because he was often on the phone and did not get to talk to her and [Y] much. She also complained about getting tired on the journey.
[X] had also indicated that she did not enjoy the weekends spent with her father. She had complained about her father’s house being cramped, particularly because another child was involved there. However, Mr S’s impression was that, over time, [X] was starting to enjoy the weekends more and felt that more attention was being paid to her and a greater effort made.
After the instigation of the counselling, it was Mr S’s understanding that [X]’s behaviour had improved in the classroom. However, he had been informed that her concentration had once again lapsed, during the first part of 2010. It was also his own perception that [X] was distracted and seemed unable to focus, on what was bothering her.
This perception intensified Mr S’s view that [X] was feeling the pressures arising from the conflict between her parents, particularly in the lead up to these proceedings. Of some note was Mr S’s evidence that he had observed [X], on the morning the proceedings commenced in court, walking alone in the playground, with “the weight of the world on her shoulders”.
Although, I must be careful not to place undue emphasis on this observation, it seems unlikely to me that [X] would not be aware, in some way, that her parents were attending court in respect of future arrangements for her and [Y]’s care. As such, it does not seem to be the case that she has what can be categorised as either a carefree or unconcerned attitude in respect of the possible outcome of this case.
Certainly, it would appear to be Mr S’s impression that [X] has some reservations about living equally with each of her parents. He noted that [X] had raised issues with him about missing out on social occasions with her friends and had been disappointed about losing friendship time, when living with her father.
Mr S also reported that [X] had, on occasions, indicated some reticence about potentially upsetting her father by presumably indicating a preference which was not in line with the equal time arrangement. This again confirmed to him that [X] remained a child who was upset by parental conflict and, although there may have been some superficial improvement in [X]’s presentation, the underlying issue had not changed for her.
It would seem to be Mr S’s assessment that the time involved in travelling between her father’s home and her school remained a major issue for [X]. As such, Mr S did not think that there had been any significant resolution of this issue, over the time he had been involved with [X].

I regard Mr S’s evidence as significant for the following reasons: Firstly, it seems that [X] regards Mr S as a confidant. Secondly, it seems there is a rapport between the two and [X] has felt that she can unburden herself to Mr S, without fear of any possible ramifications.
Thirdly, the two have built up their relationship together over a number of months. Mr S has no personal agenda to follow in respect of the counselling, other than to support [X] herself. As such, he comes into his relationship with [X] with no thought that he might influence these proceedings in any way.
Given all these factors, it seems to me to be likely that what [X] has told Mr S, over a number of months, is likely to constitute what [X] feels, in an unfiltered or uninfluenced way and, as such, to be reflective of her true views and preferences.
Mr S views [X] as a conflicted child, who is still struggling in her adjustment to all the major changes in her life over the last couple of years. She does not want to upset her father but does not relish the regular drive to Suburb F and feels that most of her life happens at her mother’s house, which is near where her friends live.
In all the circumstances of the case, this seems to be a realistic appraisal of [X]’s views in the matter. As such, it would seem to me that [X] has understandable reservations about an equal time arrangement, for reasons which are not illogical nor selfish.
However, before leaving Mr S and his evidence, I must express some concern about it, which does not relate to its utility in these proceedings or the overall integrity of Mr S himself.
One of the reasons why Mr S’s evidence was so useful was that he presented as an unbiased and unjudgmental sounding board for [X]. Children are lucky to have such sounding boards, particularly when they are going through emotionally turbulent times.
The value of such sounding boards, for children like [X], may be much reduced if they are routinely subpoenaed to give evidence in proceedings such as these. In the longer term, it would seem to me to be likely to be more helpful to children if they feel their confidences, with counsellors, such as Mr S, can be maintained.
These concerns are less significant in the present case. These proceedings did not bear the hallmarks of the worse aspects of adversarial litigation between parents, over their children, where no potential stone is left unturned and no subpoena is left unissued.
Rather, no matter what their differences, it is my impression that

Mr Macnair and Ms Macnair have remained focussed on securing [X] and [Y]’s best interests. As such, it was understandable that

Ms Macnair would have wanted to subpoena Mr S to give evidence, particularly given the overall importance of that evidence in this case.

c) The parties

Ordinarily, a court, such as this one, should refrain from making adverse comments about a parent in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful findings of fact, as a result of the court process itself.
I am well aware that it is difficult for me to form an accurate appraisal of the respective motivations of each of the parties in this case through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits. However these are the only tools I have.
However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness and the reasons why they have adopted the positions which they have, so this adjudication can occur.
In this case, both Mr Macnair and Ms Macnair are good parents, who want the best for their children. However, for obvious reasons, each will be influenced by all manner of personal influences and desires. They are also not particularly well disposed towards each other, at present. These factors must influence their overall objectivity.
The central issue in this case is the overall practicality of the equal time regime and its potential impact on [X] and [Y]. Again, for obvious reasons, Mr Macnair will tend to downplay any potential problems which may arise, whilst Ms Macnair will emphasise the difficulties likely to occur.
The task for me is to balance their respective evidence against each other and form some sort of assessment as to where the truth lies, so I can achieve what I think is likely to be the best and most practical outcome for [X]. In so doing, I will attempt to confine any necessary findings of fact to this central area.

The father

Mr Macnair has been the family’s main breadwinner. He seems to hold a responsible position at [T], in the sense that he is the “go to person”, when difficulties arise for any of the [omitted] technicians for whom he is managerially responsible.
The [omitted] business is a 24 hour a day concern. For that reason, [T] has an on-call roster. I accept that Mr Macnair is only on this roster on one week in every seven or eight, but as [occupation omitted], I would expect him always to have a supervisory role.
Mr Macnair confirmed that he has a hands free phone in his car. He said it was a common phenomenon that technicians rang him, when he was mobile to and from work and he often had to field their queries. In his evidence, he downplayed the number of calls involved and their duration. He said he would let some calls go through to message bank.
Mr Macnair seemed to me to be a diligent and conscientious employee. It would also seem to be the case that he is much valued by [T]. In these circumstances, I would anticipate that he is the type of employee, who does more rather than less than is required of him and, as a result, his work consumes a significant portion of his life.
In particular, it would seem to be the case that, in recent times, Mr Macnair has not always been able to schedule his holidays to coincide with school holidays. This has been because he has not been at [T] for a lengthy period of time and other employees have been able to secure priority over him in respect of securing leave during school holidays.
Mr Macnair deposed that the journey between his home and the children’s school took between 45 and 60 minutes, depending on the traffic. It was his evidence that the journey time is utilised in conversation between him and the children and, in addition, they listen to music, which the children choose.
I accept that there are positive aspects of the travelling time involved but it would seem to me more likely than not that Mr Macnair is required to utilise the time involved with some work related calls, which intrude upon the child focussed aspects of the journey.
In addition, it seems to me to highly probable that, at peak hours, the stresses involved in driving in heavy traffic would also be a significant factor in the drive. In these circumstances, I believe I must give some credence to reports that [X], in particular, finds the driving onerous and [Y] is often tired by it.
One of the significant planks in Mr Macnair’s case is that his employers are able to offer him flexible hours, which enable him to have “the time to deal with all that is required when it comes to his children.”[21] The evidence of this comes from Mr Macnair himself and a letter, which he has obtained from his employer.
[21] See exhibit A to the father’s affidavit filed 28 September 2009
I take the letter with “a pinch of salt”. Its writer has not been tested through any process of cross examination. It is only to be expected that he would want to be supportive of his valued employee but I am troubled by the brevity of his letter and the fact that he may not have closely considered the practical implications, for his business, of what Mr Macnair is proposing.
Without wishing to appear unduly cynical, it is easy for businesses to profess themselves to be “family focussed” and wanting to achieve “work/family balance” for their employees, but it is more difficult to put these aspirations into practice, particularly when they impinge upon the financial “bottom line” of a business and the needs of clients.
Subpoenaed records show that Mr Macnair has, in the past, worked longer hours than the norm. This would appear to be in line with his managerial position and his own personal ethos.
If the shared care regime comes into place, it is Mr Macnair’s position that he would be able to work longer hours in the week when the children are with their mother and, when necessary, perform some of his work duties at night, at the dining table, when the children had gone to bed.
I do not doubt the sincerity of these aspirations but believe they will be very difficult to put into operation. My assessment is that Mr Macnair is too conscientious an employee to be able to compartmentalise his work in this way. In addition, in the absence of compelling evidence from [T], I have grave reservations that his employer will be sanguine about such an arrangement, in the long term.
In my assessment, there are indications that there are problems arising from the logistical constraints of where Mr Macnair lives and where the children go to school. To his credit, Mr Macnair concedes that he has noticed that [X] is “pulling away from [him]”. This may be indicative of the stresses arising in her life from the current arrangement.
[X] has been assessed as being a nervous child, who worries about punctuality, particularly at school. The school bell sounds at 8:45am in the morning. I have some concerns about the viability of Mr Macnair consistently getting the children to school, on time, given the time involved in travel and the vagaries of peak hour traffic. I am also concerned that he has not always displayed complete punctuality in respect of prior arrangements for the children.
However, of more concern to me, is the collection of the children after school. Mr Macnair deposes that he would be able to leave his workplace in Suburb E, at 2:45pm during the weeks the children are in his care. Given his overall diligence and the type of position he holds, I think this is an outcome which, although Mr Macnair honestly believe to be achievable, is one that is likely to be difficult to maintain in practice.
I reach this conclusion primarily because the subpoenaed records show that, up to October of 2009, Mr Macnair was consistently working 54 hours per week and also because he has made the concession that his lack of punctuality has been a cause for concern, both by [X] and Ms Macnair in the past.
Up to this stage, the children have spent a minimum amount of time in OSHC. Mr Macnair has said he will not have to utilise out of hours school care. To be frank, I do not see how this will be possible. I doubt [T] will be willing to let him leave work early one week in every two.
I am not critical of Mr Macnair for being hard working. After all, the children rely on his hard work for their financial support. In addition, during the parties' marriage, it was Mr Macnair who assumed the greater responsibility for being the family’s bread winner.
In these circumstances, it seems to me that it would be a very difficult proposition for Mr Macnair to significantly “re-jig” the balance of his work and family commitments, in a very short time frame, notwithstanding his great desire to do so.
Ms J is employed as a part-time administration officer. She works three days per week. On Tuesdays and Thursdays she works between 11:00am and 6:00pm and on Fridays between 8:00am and 11:00am. Mr Macnair envisages that she would assist him with some of the pick up and returns of the children, if required. Ms J’s daughter [Z] is two years of age. She sees her own father frequently.
Ms J’s life is centred in the suburbs of Adelaide, particularly in terms of arrangements for [Z]. For this reason it is impracticable for Mr Macnair to move closer to Suburb B, even if he wished to do so. Again, I do not doubt Ms J’s willingness to assist Mr Macnair with travel arrangements for [X] and [Y], but I have some reservations about the long term viability of these proposals.
Mr Macnair agreed that he and Ms Macnair sometimes got “their wires crossed” over arrangements for the care of the children. It is also his past perception that Ms Macnair has overloaded the children with commitments on weekends out of a desire to frustrate his aspirations for an equal time arrangement. However, to his credit, he conceded that this perception was likely to be wrong.
However, it is the case that the children, in common with many like them, have several extramural activities, which take place on weekends. One of the most significant of these is ballet classes, which take place on Saturday mornings.
[X] and [Y] do not attend the same class but rather attend consecutive classes. Parents cannot watch classes. Accordingly, it is potentially tedious and time consuming for a parent to wait outside the class. It is easier to go and then return.
Given this state of affairs, it is far easier for Ms Macnair to take the child to ballet than for either Mr Macnair or Ms J. The same is likely to be true of scouts, which finishes at 8:00pm on Monday evenings.
Mr Macnair has committed himself to ensuring the children attend what he considers are their more important extramural activities. In the past, he has ranked the need for the children to spend time with him and their paternal grandparents as being more important than other of the children’s social activities.
I am not critical of him in this regard, but believe that this may be a source of friction between him and Ms Macnair in future. In my assessment, Mr Macnair is honest but unduly optimistic in his professed commitment to ensure that the children do attend all their extramural activities, given his logistical constraints.
In summary, it is my finding that Mr Macnair has a demanding position. I have considerable reservations that it is the sort of job from which he can easily “clock off”, when it is necessary for him to collect the children from school.
Given his work commitments, it seems unrealistic to me that

Mr Macnair has indicated that he will not utilise after school care for [X] and [Y]. I am dubious that [T] will be accepting of an arrangement whereby one of its managers leaves work at 2.45pm on five days out of each working fortnight.
Although I accept that [T] has indicated its support for him, I am concerned that its senior management do not have a proper appreciation of what Mr Macnair has in mind, particularly the imposition an equal time arrangement is likely to have on

Mr Macnair’s availability at work.
In addition, I do not think that Mr Macnair has a realistic understanding of the difficulties likely to arise from him having to cram more work into one week of each fortnight and perform other duties at night, after the children have gone to bed. It is a daunting schedule, particularly when the required driving is factored in.
Mr Macnair, for understandable reasons, is more optimistic about the burdens of the travelling involved, not only for the children but also himself. Given his enthusiastic disposition, it seems to me that the mother is more likely to have an accurate appreciation of the duration of the drive involved for the children. It also seems likely to me that, as time passes, the drive will become more rather than less difficult.
Ms J is a pleasant and helpful person. She and Mr Macnair hope to have their own children together at some stage in the future. In these circumstances, it is only to be expected that she would be supportive of Mr Macnair in his proposals for [X] and [Y].
However, Ms J has her own life and responsibilities, particularly for [Z]. She has to liaise with [Z]’s father. Necessarily, her life is based in the Suburb F area.
As such, I have concerns that it may be unrealistic and unfair of

Mr Macnair to expect her to assist with arrangements for [X] and [Y] in the longer term. In any event, her logistic involvement with [X] and [Y] is as yet untested.
The balance of Mr Macnair’s various work and family commitments must necessarily be regarded as complex. The children also have a complex schedule of activities, mostly based in the Suburb C and Suburb B area. Problems will inevitably arise in co-ordinating these schedules. I am concerned that Mr Macnair and Ms Macnair do not have an established track record of solving these types of problems consensually.
Finally, [X] is an anxious child, who is worried about being late, particularly for school. I am worried about the potential for [X] to become stressed by the pressures likely to arise from the shared parenting regime advocated by Mr Macnair.

The mother

It is my finding that Ms Macnair is a child focussed parent. It is apparent to me that her life is largely centred on the discharge of her responsibilities for the children. Ms Macnair is not a wealthy person and her financial circumstances compel her to work.
She organises her work to fit in around the needs of the children, particularly their school hours. She works four days per week. On Mondays, she works from 9:30am to 1:30pm; on Tuesdays she works from 9:00am to 2:00pm; on Wednesdays she works from 8:30am to 5:30pm; and on Thursdays she works from 8:30am until 4:00pm.
Suburb C Primary School is around five minutes drive away from

Ms Macnair’s home in Suburb B. She is able to deliver the children to school on each Monday, Tuesday and Friday. On Wednesdays, the children are delivered to school by their maternal grandmother.
School finishes at around 3:15pm. Accordingly, Ms Macnair has plenty of time to collect the children on each Monday, Tuesday and Friday. On the Wednesdays the children are not collected by their father, their maternal grandmother collects them from school. On Thursdays the children spend a short period of time at out of hours school care, being collected by their mother around 4:30pm.
As previously indicated, Ms Macnair is employed as a [omitted]. It is her evidence that she is not required to work significantly during school holidays, as a skeleton staff is utilised to provide some school holiday activities. At the most, she may be required to work up to 12 hours during each school holiday period.
Financial necessity compelled the sale of the parties’ former family home at Suburb A. The mother’s parents lived close by and so [X] and [Y] could remain at Suburb C Primary School. With the receipt of the funds, which have come to her, from the settlement of the parties’ property proceedings, the wife has elected to purchase a property in the same suburb.
In so doing, I am satisfied that the mother has wanted to provide a level of continuity for the children. However, it is also clear to me, that the mother is happy and well settled in the Suburb B area, where she has the support of her own mother.
In common with many children of their age and background, [X] and [Y] engage in several extra curricular activities. These include ballet on Saturday and [church group] on Friday evenings. From third term 2009, [X] has been involved with scouts on Monday evenings. It is anticipated that [Y] will also be engaged in scouting.
In the past, the children have done a six week netball course. At present, [X] is seeing a tutor, about once a month, on Wednesday afternoons. All these activities are based in the Suburb B/Suburb C area.
These all seem to me to be perfectly acceptable and normal activities for children of the ages of [X] and [Y]. It does not seem to me that the children’s lives are unnecessarily filled with activities. To the contrary, they are the sorts of things in which children are encouraged to engage by their parents so that they will become more rounded individuals.

b) The nature of the children’s relationship with each of their parents and significant others

It is not in dispute that [X] and [Y] have a close and loving relationship with each of their parents. Certainly, this was Mr R’s assessment, which I accept. It also seems to be the case that the children have relations, on both their maternal and paternal aspect, who are anxious to spend time with them and extend and preserve relationships with [X] and [Y].
In my view, it is likely to be important to [X] and [Y]’s sense of identity that they gain a sense of where they fit in, in their wider family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[27]
[27] See Bright v Bright (1995) FLC 92-570 at 81,658
The father’s position is that his parents do not currently spend sufficient time with [X] and [Y]. They live near Mr Macnair’s home in Suburb F. Mr Macnair’s close relationship with his parents and the fact that they are growing older is one of the reasons it is not easy for him to contemplate moving from the suburbs of Adelaide.
However, notwithstanding the desirability of [X] and [Y] having the opportunity to spend more time with their paternal grandparents, I do not think that this is a factor which militates strongly in favour of the father’s proposal. Whatever is the outcome of this case, I would expect the children to be able to maintain a sufficient relationship with their grandparents, on both their fathers and mother’s side.
[X] and [Y] have a good and developing relationship with Ms J and [Z]. In this regard, I note Ms Macnair’s comment that [X] and [Y] speak “nicely” about Ms J.

c) The willingness and the ability of the parties to encourage a close and continuing relationship between the children and the other parent

The legislation requires me to consider the extent to which both parties have fulfilled or failed to fulfil their responsibilities as parents [Family Law Act 1975 section 60CC(4)]. One of these responsibilities is the facilitation of a meaningful relationship between any child concerned and the other of his or her parents.
It is Mr Macnair’s perception that Ms Macnair has not been as proactive, as she should be, in supporting his relationship with [X] and [Y]. I do not accept this to be so.
Just because Ms Macnair does not accept Mr Macnair’s proposals for a shared care regime and is not in favour of the father’s time with the children being extended, it does not necessarily follow that she does not support the children having a close and loving relationship with their father. Rather, it seems to me that she has justifiable and reasonable reservations about the workability of the father’s proposals and their implications for the two children concerned.
In my estimation, Ms Macnair does accept the importance of the father in the children’s lives and is supportive of [X] and [Y] seeing him regularly. She does however vehemently disagree with Mr Macnair as to the viability of an equal time arrangement. I agree with Mr R’s assessment that she has not adopted this position out of any personal antipathy for Mr Macnair.
It is noteworthy that both parties are able to see positive attributes in the other. As such, Mr R was correct to characterise the case as being out of the ordinary run of matters, which come before the court.
Mr Macnair is vitally interested in all aspects to do with [X] and [Y]’s care, as is Ms Macnair. This is implicit in their mutual decision to have equal shared parental responsibility for the children.
I accept that Mr Macnair fervently wishes to spend as much time as possible with the children. I also accept that he has fulfilled his parental obligation to maintain the children financially, as has

Ms Macnair.

d) The likely effect on the children of any changes in their circumstances

I accept Mr S’s evidence that [X], in particular, is still coming to terms emotionally with the significant changes that have occurred in her life, since the parties separated. She does not seem to be a child, who relishes change. In my view, this is a significant factor which points in favour of the court adopting a cautious approach in respect of any decision to change the children’s existing living arrangements.
[X] and [Y] have never lived in an equal time arrangement. The father has no experience of coping with the logistical issues likely to arise from such an arrangement on a consistent week in/week off basis. As such, if the court was to adopt his proposal, it would necessarily be a somewhat experimental outcome.
In these circumstances, I have considerable reservations about how easily the children, particularly [X], would adapt to the week about arrangement, particularly the travelling involved. I am also concerned that Mr Macnair himself may have underestimated the burden such an arrangement will place on him, particularly in terms of how he will accommodate his employment commitments.

e) The practical difficulties and expense of the children spending time and communicating with each of their parents

I propose dealing with the vast majority of issues to do with the practicality of the children spending time with their father, particularly under an equal time arrangement, when I come to consider the matters arising under section 65DAA(5).
Although distance between the parties’ respective homes is clearly a relevant consideration, in this matter, I must not lose sight of the fact that both Mr Macnair and Ms Macnair live in the metropolitan area of Adelaide. Accordingly, whatever is the outcome, [X] and [Y] will be able to see their father regularly and the costs involved will not be prohibitive.
Mr Macnair is entitled to four weeks annual leave. I accept that he has difficulties in coordinating his leave with the time of the school holidays but I am concerned that he has no real proposals to spend time with the children during school holidays, other than that the week about arrangement should continue.
Ms Macnair proposes that the children should spend time with their father, during school holidays, at times to be agreed. She has been previously critical of Mr Macnair for not taking the opportunity to spend time with the children, during school holidays. The gravamen of her criticism being that he has prioritised his work commitments over the needs of the children.
Ms Macnair herself has ample time to spend with the children, during school holidays, as her work commitments, during these periods, are minimal. I would anticipate that she would want to take a longer holiday with the children and perhaps go away, at some time in the future.
I would also anticipate that the father would want to take a vacation with [X] and [Y] in future. The mother proposes that, at the very least, the father spends a week with the children between Christmas and the New Year, in alternate years. The parties are in agreement about Christmas Day itself and other special occasions.

f) The capacity of the parties to provide for the children’s emotional and educational needs

i) The attitude that each parent has demonstrated to the responsibilities of being a parent

These considerations are closely related and so it is convenient to consider them together. As I have previously indicated, I am satisfied that both parties take their responsibilities as parents very seriously indeed. I reiterate they are good parents.
Ms Macnair is a [omitted]. As one would expect, from her profession, she places much emphasis on the children being supported at school, so that they can each attain their full intellectual potential. In addition, the children engage in a number of extramural activities, which will assist them to be well rounded children.
I also have no doubt that Ms Macnair is emotionally available to the children and they are happy and secure in this regard. Mr Macnair is also in tune with [X] and [Y]’s emotional needs. In this regard, he has noted that [X] is “pushing him away” at present. I do not think that this is significant or likely to be long lasting.
Although both Mr Macnair and Ms Macnair are excellent parents, who are alive to their children’s emotional and educational needs, they are likely to approach these issues differently and so parent the children in distinct ways. In my view, the children are likely to benefit from being exposed to these different kinds of parenting and the disparate personalities of their parents.

h) The children’s maturity, sex, lifestyle and background

i) Aboriginality

In the context of this case, these criteria do not appear to be specifically relevant.

j) Family violence orders

k) Any family violence order

Family violence is not a consideration in this case. There are no relevant family violence orders applicable to the parties in this case.

l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
These proceedings have already gone on for longer than was initially anticipated or can be considered desirable. There are signs that [X], in particular, is reacting adversely to the pressures which the proceedings will necessarily precipitate.
In these circumstances, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible for the children, which will obviate the need for any further litigation.
In my view, this consideration militates against the court taking an experimental approach in respect of any orders which it makes. As I have already indicated, the children have never lived in the equal time arrangement advocated by Mr Macnair. The proposed arrangement envisages significant practical and travel considerations. In addition, Ms Macnair does not favour it.
Given these factors, it is unclear to me whether both the children and Ms Macnair will readily adjust to such a shared care regime. It is in this sense that I regard the proposal as being experimental, in that its outcome cannot be predicted with certainty. Accordingly, it seems to be the outcome which is the most likely to lead to further proceedings between the parties and, as such, to be contrary to the best interests of the children.

Reasonable practicality

Given the structure of section 65DAA, as the parties have agreed that the presumption of equal shared parental responsibility is to be applied to them and their care of [X] and [Y], I am required to consider whether firstly an equal time arrangement and, if this is ruled out, secondly whether a significant and substantial time arrangement should be applied to [X] and [Y]’s parenting.
Both such regimes are predicated on the basis that they must be reasonably practicable to put into operation, not merely beneficial for any child concerned. The test of what is practicable, in any given case, is to be assessed by the court objectively. In making this objective assessment, the court is required to consider four specific criteria and one generic criterion, as set out in section 65DAA(5). I turn to consider those matters now.

a) How far apart the parents live from each other

The parties live approximately 35km apart from one another.[28] I agree that it is not a vast distance. But in my view, the distance must be assessed by whether a reasonable set of parents would consider that such a distance would not unduly impact upon the viability of an equal time (or substantial and significant time) regime given the reality of their family situation.
[28] See exhibit A – the Google map
Accordingly I am not to consider the distance against a template of two empathetic and conciliatory parents, who are always willing to walk an extra mile for the other, nor against a template of two querulous and difficult parents, who are incapable of any form of compromise. Rather I must consider the distance involved against a model of two parents, who have ordinary foibles and who are neither extraordinarily saintly nor unusually difficult.
Essentially the question is whether an ordinary set of parents, with no special axe to grind with the other, would think it reasonable to parent two children, with the attributes and needs of [X] and [Y], in circumstances where their homes were 35 kilometres apart and the driving of the children between them more often than not happened during peak hour traffic, in an Australian capital city of moderate size.
In this case, I consider that the distance involved, particularly the frequency of travel necessarily arising from an equal time arrangement, by any objective assessment, is not practicable in the circumstances of Mr Macnair continuing to live in Suburb F and Ms Macnair continuing to live in Suburb B.
Essentially, I do not think that the children travelling up to 2 hours per day between school and their father’s home in one week of every two is a reasonably viable proposition, particularly when the vagaries and uncertainties of Mr Macnair’s work situation is factored in. In my view, the travel involved is just too burdensome to the children concerned and a reasonable and objective parent would not consider it otherwise.
Mr R’s subsidiary proposal was that the children should live with their father from Wednesday after school until the Monday morning in alternate weeks. During term time, this would envisage the children driving between Suburb F and Suburb C on four occasions each fortnight. Although logistical constraints still apply to such an arrangement, in my view, it is objectively workable, particularly as only alternate Thursdays and Fridays would involve a double trip for the children.

b) The parties current and future capacity to implement an equal time – substantial and significant time regime

These proceedings have been rigorously contested. It is clearly

Ms Macnair’s view that an equal time arrangement for [X] and [Y], given the parties’ current situation, simply will not work. She regards Mr Macnair as having an unrealistic appreciation of how difficult it will be to implement such a regime and by implication she believes he is motivated more by his own personal feelings than a consideration of what will be best for the children.
She also regards Mr Macnair as having issues to do with punctuality and reliability and fears that when “push comes to shove”, he will put more store on discharging his work responsibilities than his obligations to collect and deliver the children to school and their other activities.
In adopting this view, I do not think that it can be said that Ms Macnair is being difficult for the sake of being difficult or that she is an inherently unreasonable person. In my assessment, she has reason to be dubious about the viability of an equal time arrangement. Like

Mr R, I have found her to be a person who is focussed on the children. She is not driving the dispute between her and Mr Macnair, about equal time, for any ulterior motive.
In these circumstances, the only way that a shared care arrangement can come about is if it is imposed upon the parties by court fiat. Such an outcome is likely to leave Ms Macnair feeling disregarded and unheard. In my view, it is not a situation likely to be conducive to the parties being able to implement successfully an equal time arrangement.
Ms Macnair did not seem to me to be an unreasonable person. She is however not endowed with extraordinary levels of magnanimity, particularly for Mr Macnair. As I have indicated, I consider that, given where Mr Macnair works and his onerous work commitments, an equal time arrangement for [X] and [Y] is likely to be fraught with all sorts of difficulties.
As such, it is likely that arrangements for the children may have to be recalibrated, very often at the last minute, when some unforseen exigency arises. I suspect that Ms Macnair will find it difficult to accept such changes of arrangement with consistent sang-froid.
As Mr R observed in his first family report, certainly prior to the shared parental responsibility amendments to the Family Law Act 1975, equal time arrangements for children, following parental separation, were the exception rather than the norm.
Where they did exist, it was usually found that the parents concerned had a shared commitment to making the equal time arrangement work. Ms Macnair does not have such a visceral level of commitment. She is likely to remain opposed to an equal time arrangement for the foreseeable future. I find it unrealistic to compel Ms Macnair to an arrangement which she thinks is ill-considered and, as a corollary of that, require her to give an undiluted commitment to make it work.
In addition, for reasons already provided, I am somewhat dubious about Mr Macnair’s evidence that his employment is “child focussed”. In my view, this is also likely to be a significant factor in how successfully the parties are able to implement an equal time arrangement.
Mr Macnair has a busy and responsible job. I am concerned that his job will inevitably impinge upon any responsibilities which arise for him under an equal time arrangement. In such circumstances, I am fearful that it will be difficult for the children to be kept “out of the middle” of any resulting dispute between the parties.

c) The parties’ communication skills

Mr R assessed the parties’ communication skills as being adequate. I agree with this assessment. The question for me is whether that level of communication is sufficient to make an equal time regime for [X] and [Y] viable from an objectively judged stance.
I believe that the parties in this case would have liked to be able to resolve the various differences between them, without recourse to litigation, which inevitably must have been both financially and emotionally draining for them both. However, their differences in personality and outlook on the children has prevented them doing so. Once again, the parties have demonstrated that they are different in character and personal orientation.
Inevitably, these circumstances must lead to differences of opinion between them, particularly since the relationship between them has ended, an occurrence, which for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
Every case, involving the care of arrangements for children, which comes into court, must involve issues of this kind to some degree or other. It cannot be the legislative intent that shared parenting be ruled out in all of these cases.
In Astor & Astor[29] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[29] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard which is clearly unattainable given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes. Again the standard by which these communication skills is to be judged is by an objective standard.
The test for communication skills, as stipulated by section 65DAA(5)(c), is directed to how amenable separated parents communication skills are likely to be to the resolution of “difficulties” arising from an equal time arrangement.

For obvious reasons, these difficulties are not able to be defined in the applicable legislation. They are likely to become more multifarious, depending on the complexity of any regime for the care of children and the degree of controversy which has surrounding the inauguration of such a regime.
In my view, an equal time regime, spread between two households separated by thirty odd kilometres involving children whose schooling, friends and extracurricular activities are centred more on one household than the other is necessarily likely to be highly complex. It is also highly controversial, so far as Ms Macnair is concerned. In these circumstances, it is my view that many difficulties are likely to arise between the parties.
These difficulties are likely to range from the trivial – a school reader or tennis racquet left behind – to the complex – a parent being unavoidably detained and unable to collect the children from either school or some other activity. My assessment of the parties is that they would have difficulty resolving the more complex parenting difficulties arising between them without some form of recrimination.
I reach this conclusion because of the criticism, which each of the parties has of the other.[30] I have not found it necessary to resolve the vast majority of these matters, many of which are comparatively trivial. But these criticisms of themselves, do not speak of the parties having an easy or trusting relationship with one another. These issues continue to rankle with each of them and the parties have displayed little capacity to talk them through.
[30] These are listed at paragraph 36 of these reasons for judgment
In my view, the parties’ expectation of what is required of their communication skills is very different. Ms Macnair is a person who likes concrete details and for arrangements to be worked out well in advance. Mr Macnair is more laissez-faire in attitude. This is most clearly exemplified by the father’s attitude to bringing the children home later than previously discussed and his attitude to the planning of holidays.
From Mr Macnair’s point of view, it does not matter if he is a couple of hours late in bringing the children back, provided he is doing something which he thinks is worthwhile with the children. From

Ms Macnair’s point of view, these deviations from schedule rankle. It is also annoying to Ms Macnair that Mr Macnair has no clear proposal as to what arrangements should be for the children during school holidays, other than the week about arrangement should continue.

d) Impact upon the children

At the end of the day, it is [X] and [Y] who have most at stake in the equal time arrangement. They are the individuals who are most likely to be affected by it. It is their schooling which will be impacted and potentially their extra curricular activities disrupted.
In addition, perhaps more importantly, they may be at the centre of any disputes arising between their parents, if the arrangement sought by the father proves impracticable to implement. There are already signs that [X], in particular, is carrying an emotional burden as a result of the conflict between her parents. I am concerned that, if an equal time arrangement is inaugurated, it will intensify the potential for conflict to arise between her parents. In turn, this is likely to have implications for [X]’s ongoing sense of emotional equilibrium.
As I have already indicated, it seems clear that the centre of the children’s educational and social lives is focussed on Suburb B and its environs. In this sense, I am concerned that the equal time arrangement may adversely impact upon these aspects of the children’s lives. It seems to me to be unrealistic to expect the children to live equally in homes separated by in excess of thirty kilometres, in circumstances where the weight of the lives rests more in one locale than the other. In addition, I accept that such an arrangement is not [X]’s personal preference, primarily because of where she perceives the focus of her life to be.

Conclusions

It is appropriate that the parties should have equal shared parental responsibility for [X] and [Y]. As a consequence, I am required to consider firstly an equal time arrangement for the ongoing parenting for two children and then, if this is ruled out, consider a substantial and significant time arrangement.
Both potential regimes are subject to considerations of the children’s best interests and whether they can be reasonably put into practice. These considerations are of equal importance. In respect of considerations relating to practicality, I have to consider the reality of the familial circumstances surrounding the children concerned rather than what may theoretically be the optimal outcome for them.
Having considered the various section 60CC factors, particular [X]’s views about such a regime and the possible deleterious consequences of abruptly changing the children’s current care arrangements, I have reached the conclusion that an equal time arrangement would not be in the best interests of the children.
I have also considered that such a regime is not objectively practicable. The parties live too far apart and necessarily there will be too many logistical complexities arising as a result, which the parties’ current parenting relationship, although far from being a fatally flawed one, nonetheless still lacks sufficient resources to solve effectively.
Mr Macnair is a loving and capable parent. As such, both [X] and [Y] will benefit from having a meaningful level of relationship with him. Meaning, in parental relationships, comes both from the context of time a parent spends with a child but also its duration. However quality of time – what a parent and a child actually do when they interact together – is necessarily more significant than the quantity of time per se, provided that there is a sufficient mass of time available to be spent between parent and child.
I can appreciate why Mr Macnair would think that an equal time arrangement is the best one both for him and [X] and [Y]. After all the emphasis in the applicable legislation ranks equal time above substantial and significant time. More time is necessarily better. However the difference between equal time and Mr R’s subsidiary recommendation is, in my view, slight.
In my view, at the present time, Mr Macnair has a meaningful level of relationship with the children, as a result of spending alternate weekends and overnight on every second Wednesday with them. The children know their father well and love him. I accept that this relationship is likely to be enhanced if Mr Macnair spends slightly more time with the children, particularly if the time can be consolidated into a block of consecutive days which will include both school and non-school days. However, given the existing mass of the relationship between father and children, the change will not be a significant one.
In these circumstances, I have come to the conclusion that it would be in [X] and [Y]’s best interests to spend significant and substantial periods of time with their father. Such an arrangement will still create significant logistic considerations, particularly given the distance between the parties’ two homes and the consequences arising from Mr Macnair’s demanding work schedule.
However, objectively considered, I think that the parties’ have the resources to deal with these issues, if the subsidiary regime proposed by Mr R is adopted – that is the children spending from after school on Wednesday until school recommences the following Monday, in alternate fortnights, with the father.
This builds on the existing arrangement, which sees the children spending overnight, on alternate Wednesdays, with the father. The advantage of it is that the children will be able to spend time with their father on both a school night and in the more relaxed time of the weekend. The time will be consolidated and the travelling entailed minimised. It will also, I hope minimise any sense of dislocation which the children feel and be more workable both from Mr Macnair and for Ms Macnair herself.
I am troubled about arrangements for school holidays. With respect, neither party seems to have given this aspect of the case a great deal of thought. Mr Macnair’s preferred position was that the week about arrangement should continue, whether he was able to take holidays or not.
It seems to me that he has not given a great deal of thought about how he would supervise the children, if he was not able to take time off. It remains a point of some irritation for Ms Macnair that during the recent holiday arrangements were made for the children and their father to attend a movie together and what occurred was that Ms J actually attended the film with the children, whilst Mr Macnair was at work.
Ms Macnair takes a similar attitude, proposing that the alternate weekend and intervening arrangement continue during school holidays other than that fixed arrangements would be made for Mr Macnair and the children to spend a week or so together alternating between before and after Christmas in odd and even ending years. She would however want the opportunity to spend a week with the children, on giving notice to Mr Macnair, during the shorter school holiday periods.
I appreciate that it may be difficult for Mr Macnair to always coordinate his annual leave with the periods of the school holidays and, in any event, unlike Ms Macnair, he is not able to cover all the school holidays concerned, even in ideal circumstances. However, it would seem to me that the intent of the legislation regarding substantial and significant time is that, wherever possible, children should have the opportunity to spend time with a parent during school holidays.
For this reason, I propose suspending the 5/9 arrangement during the shorter school holidays and dividing those holidays equally between the parties. Given his senior position with [T] and given that he will have advance notice of it, I would have thought that Mr Macnair would be able to take holidays during these periods more often than not.
In any event, I do not think it would be reasonable to require him to take his vacation at this time. I take the view that the opportunity to spend an extended period of time in their father’s household, during these shorter school holidays will tend to add meaning to the children’s paternal relationships.
The longer end of year school holiday is more problematic. This is traditionally the period when Australian families took an extended holiday together and often went away, either to the beach or the country. I would imagine, at some time in the future, both parties would want to take a longer holiday with [X] and [Y].
The parties seem to be in general agreement that the children should spend a block of time with each of their parents in days leading up to Christmas Day and for a week afterwards, provided these blocks of time alternate between the parents each year. I will make orders to this effect.
In respect of the remainder of the long school holiday period, a block of usually a little under four weeks, I propose that arrangements be made which would enable each party to take a fortnight’s holiday with the children in January, if they wish. However, I think it should be subject to the condition that Mr Macnair is actually able to take a vacation at this time.
To the parties’ mutual credit, they have been able to agree substantially on arrangements for special occasions and the manner by which each will be able to communicate with the children by way of the telephone. They have agreed on what is usually characterised as liberal telephone communications.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and forty-one (341) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 25 May 2010