MCALROY & METTERS
[2015] FCCA 2147
•27 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCALROY & METTERS | [2015] FCCA 2147 |
| Catchwords: FAMILY LAW – Parenting – spends time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MR MCALROY |
| Respondent: | MS METTERS |
| File Number: | WOC 57 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 22 July 2015 |
| Date of Last Submission: | 22 July 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 27 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Bailey Mullard lawyers |
The Respondent appeared in person.
ORDERS
That the parties have equal shared parental responsibility for the Child, [X] born [omitted] 2009 (“the Child”).
That the Child live with the Mother.
That the Child spend time with the Father as follows:
(a)In Week 1, from Thursday after school until before school on Monday;
(b)In Week 2, from after school on Wednesday until before school on Friday; and
(c)At other times as agreed between the parties.
That for the purposes of the Child’s time with the Father during school holidays, Order (3) above is to continue over the school holiday periods, unless otherwise agreed, with changeover to be as agreed, or failing agreement with collection by the Father from the Mother’s home at commencement of time, and collection by the Mother from the Father’s home at the conclusion of time.
That the Child spend time with each party for special occasions as follows:
(a)In even numbered years, with the Father from 1:00pm on Christmas Eve (24 December) until 1:00pm on Christmas Day (25 December), and with the Mother from 1:00pm Christmas day until 1:00pm Boxing Day (26 December);
(b)In odd numbered years, with the Mother from 1:00pm on Christmas Eve (24 December) until 1:00pm on Christmas Day (25 December), and with the Father from 1:00pm Christmas day until 1:00pm Boxing Day (26 December);
(c)In the event the Child is not already in the Father’s care, on Father’s Day (the first Sunday of September each year), with the Father from 9:00am to 5:00pm;
(d)In the event the Child is not already in the Mother’s care, on Mother’s Day (the second Sunday of May each year), with the Mother from 9:00am to 5:00pm;
(e)On the Child’s birthday [date omitted] as agreed, with the party that the Child is not already spending time with for a minimum of two hours on a school day and for a minimum of 4 hours on a non-school day, and failing agreement, from 4:00pm – 6:00pm on school days and from 9:00am – 12:00 noon on a non-school day.
The parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)Any medical problem or illness suffered by any of the child whilst in either parent’s care;
(b)Any medications that have been prescribed for any of the child;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding any of the child;
(d)Any significant social, school or religious functions which the child is to attend;
(e)The residential address of each parent and particulars of others who may reside with the child; and
(f)Any other important matter relevant to the welfare of the child.
Both parents are entitled to attend all events involving the child including, but not limited to:-
(a)Sporting functions;
(b)Extracurricular activities that allow for parental attendance; and
(c)School functions that allow for parental attendance including, but not limited to, concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions, and the parent who has the child in their care on that day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from such event.
That each parent advise the other parent, and keep the other parent advised, of their current contact telephone numbers (including both landline and mobile number if applicable) and advise the other parent to any changes to these details within seven (7) days of such change occurring.
That each parent will authorise any relevant health or educational professional to provide the other parent with copies of school reports and any other reports, information and documentation relating to the health and education of the child.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child.
Both parents are to forthwith attend the ‘Parenting After Separation’ course run by Anglicare in Nowra (ph: 1300 651 728).
IT IS NOTED that publication of this judgment under the pseudonym McAlroy & Metters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 57 of 2013
| MR MCALROY |
Applicant
And
| MS METTERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a very lucky girl, [X], who is six and a half years old. She has two parents who love her very much and are able to provide for her everything that she will need, in every respect. Whilst [X]’s parents cannot agree about how her time should be divided between them, and thus the need for these orders, both of [X]’s parents are good people, doing an excellent job at parenting despite their personal differences and notwithstanding the end of their relationship.
By the time of the final hearing, [X]’s father, who was the Applicant, asked the Court to make orders which reflected the current parenting arrangement for [X] in the sense that [X] spent time with him for six nights each fortnight. The manner in which he proposed that this time be implemented is slightly different to that which exists currently, but there seemed benefits to both parents and to [X] in restructuring the orders as he proposed. It seems common ground that since September or October last year [X] has been spending six nights each fortnight with her father.
By the time of closing submissions, [X]’s mother, who was the Respondent in this case, was proposing to the Court that [X] spend five nights each fortnight with her father, together with one additional after school visit. [X]’s mother, in her closing submissions, openly acknowledged to the Court that this proposal was her pragmatic response to the evidence as it had unfolded during the hearing, particularly the Family Consultant’s evidence. Whilst [X]’s mother was not entirely happy with the proposal she was putting forward, it was certainly obvious to the Court that it was still a proposal that she thought was in [X]’s interests, was consistent with the arrangement that had existed for many months, and was probably one that [X] could cope with.
Thus, by the time of closing submissions, the differences between [X]’s parents’ proposals was quite narrow. Nonetheless, this was obviously an important issue for them. It was an issue they could not, regrettably, resolve by themselves. It was an issue that they thus left to the Court to decide.
It is sad and disappointing in some respects that the parents could not sort this issue out for themselves – after all, they are the experts when it comes to their daughter. When parents can't decide, a Court has to step in and make the decisions they can't make themselves. This does not detract, however, from the fact that these are two good parents and [X] is one very lucky little girl.
Background
[X]’s father is 27 years old, lives with his parents in the [S] area, and is currently unemployed. [X]’s mother is 24 years old, is currently also unemployed, and lives with [X] in good accommodation, also in the [S] area. The parents were together for about five years between 2007 and 2012.
On 31 January 2013, the parents entered into interim consent orders that resulted in [X] spending time with her father for three nights each week from Thursday to Sunday. This is an agreement that the parents entered into with the assistance of their legal representatives at the time. The evidence indicates that there was a period after the orders were made when, as a result of the Father returning to work, the parents agreed to change the arrangements so that he spent less time with [X]. However, by September or October in 2014 they had resumed the arrangement that was reflected in the consent orders, that is, a shared care arrangement of about six nights a fortnight.
During the course of the proceedings, two Family Reports were prepared by Family Consultant Campbell, one dated 11 June 2013 and the other dated 18 November 2014. Both Reports are quite consistent in terms of Ms C’s recommendations that the shared care arrangement continue. In these reasons for judgment, the focus will be on Ms C’s second Report, as well as the evidence that she gave at the hearing itself.
The evidence and proposals of the parties
At the hearing, the Father was represented by his Counsel and solicitor. The Mother represented herself. She is clearly an intelligent and quite articulate woman. Whilst she needed time to gather her thoughts, when she did so, the questions that she asked in cross-examination, and the submissions that she made, were for the most part relevant and helpful.
In the Father’s case, he relied on his Affidavits of 23 January 2013 and 14 July 2015. The Mother relied on her Affidavits of 25 February 2013 and 15 July 2015. As the issues had narrowed so much by the time of the commencement of the hearing, let alone by the time of closing submissions, much of the evidence that each of the parents gave, particularly in their first affidavits, was quite plainly irrelevant. Whilst it is true, therefore, that both parents were cross-examined, because the ambit of the dispute had narrowed so much, hardly any events in the past needed to be the subject of scrutiny in cross-examination.
One of the features of this case was the very civil interchanges that took place between the parents when the Mother was cross-examining the Father, and the appropriately constrained cross-examination of the Mother by the Father’s counsel. Indeed, the Court observes the parents’ civility towards each other was demonstrated not just by what was said in cross-examination and how it was said, but it was perfectly obvious to the Court by the demeanour of both parents in the witness box. Both appeared quite relaxed in the witness box, which is surprising given the highly artificial and often challenging atmosphere of the courtroom. It was obvious to the Court that they easily exchanged views about [X] and aspects of her parenting, and whilst not agreeing with each other, readily respected the others’ views.
The precise orders sought by the Father are contained in his case outline document and was supplemented by a further document produced at the hearing dealing with school holidays. The Father’s proposal is reproduced in the first schedule to these reasons.
The Mother’s proposal evolved during the course of the hearing but, by the time of closing submissions and at the Court’s request, she explained that she was seeking orders for [X] to spend time with her father from after school on Thursday to before school on Tuesday, and then from after school on Thursday to 6:45 pm.
Apart from a dispute about whether [X] should spend six nights a fortnight with her father, or five nights a fortnight plus one afternoon, there were other minor issues for the Court to determine. The first one related to how school holidays should be divided, with the Father proposing that it be half the school holidays, but in the end of year school holidays it be week-about. In relation to school holidays, the Mother proposed that the school term arrangement simply continued.
The final issue calling for the Court’s determination was whether an injunction that the parents had agreed to in the interim orders (order 17) should continue.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Family Reports and the Family Consultant’s evidence
As foreshadowed, given the significant narrowing of the issues in this case, the focus will be on Ms C’s second Family Report dated 18 November 2014. Ms C referred to the negotiations that the parents had undertaken between themselves in 2013 and 2014 about settling the case. She made the observation at paragraph 13 that there was no evidence that [X] was being unduly affected by the conflict between her parents or by their different parenting approaches. She noted that both parents were somewhat frustrated by the litigation process and their inability to resolve issues pertaining to [X]. She noted that there were times when the parents struggled to communicate with each other. The Father’s desire for a shared care arrangement and the Mother’s concerns about a shared care arrangement, were noted.
The Family Consultant was clearly concerned about the impact on [X] of the significant changes in her life if her mother’s proposal were adopted. At paragraph 34, the Family Consultant records:-
“Ms M was nonchalantly dismissive of the effect of such a significant change on [X], and on her relationship with her father. She expressed the view that [X] is an intelligent and resilient child who will understand that it is best for her to live primarily with her mother.”
The Mother seemed to emphasise to Ms C all the differences in parenting styles and challenges in the parents’ relationship, as well as the adverse impact on [X] of the current shared care arrangement.
The Family Consultant’s observations of [X] commence at paragraph 41 of her Report. [X] “presented…as bright, cheerful and once again easily engage.” She clearly loved going to school. [X] was aware of the different rules at her respective parents’ houses, but “she loves staying at both her houses and she would not want to change anything” (paragraph 44). [X] reiterated to the Family Consultant that “there is nothing about her parents that makes her sad or worried” (paragraph 44).
At paragraph 45, the Family Consultant records:-
“[X] was observed over the course of the day with both her parents. As before, she tended to be more affectionate with her father and slightly reserved with her mother; she moved easily between her parents and she did not appear to notice the tension between them (which was far more obvious this time than in June 2013).
Ms C’s evaluation commences from paragraph 46 of the Report. As she noted, for example, that the parental relationship was assessed as being one where there was a residual affection between the parties, which gave rise to at least a possibility of them reuniting in the future. It was apparent at the hearing, however, that this would not be the case. The Family Consultant further observed the parents to be communicating relatively well and both were able to reflect on how they could improve this in the future, for the benefit of [X]. This observation is one which the Court itself has made in relation to the parents at the hearing. The Family Consultant observed that both parents seem supportive and encouraging of the other’s role and importance in [X]’s life, and the need for them to work together to parent her most effectively. Again, this is an observation consistent with what the Court saw during the hearing.
Ms C frankly acknowledged that many of the things that each parent said of the other during the Family Report interviews (consistent, the Court observes, with each of the parents’ first affidavits) were very critical of the other’s parenting capacity. Ms C then makes this important observation at paragraph 48:
Yet the concerns they presented were, overall, nothing other than minor differences in approaches to the parenting endeavour. [X] herself noted that the two households are different and this means that in one, for example, she eats more vegetables and in the other she plays more videogames. These are tolerable differences in parenting styles. They will be unlikely to cause any problems for [X] in either the short or the longer term. There is no evidence of excessive use of alcohol or drugs, violence or drugs, or mental illness. Both parents report [X] is doing well at school. [X]’s behaviour problems that Ms M is so concerned about (her wilfulness and lying) appear to be minor and may be developmentally normal. They are unlikely to be related to her family situation.
Paragraph 49 of the Family Report is significant, even if the purpose in reproducing it in these reasons is to record how much the Mother had changed by the final hearing:
Ms M presented as more truculent in her views and less mature and reflective on this occasion than she did in June 2013. The dominant theme of her conversation was about the need to do what makes her happy rather than about what [X] objectively needs (although she did try strenuously to link the two). Ms M was dismissive of the importance of Mr M in [X]’s life and she over-elevated her own importance to [X]. This lack of balance is concerning, because [X] is a child whose father has been strongly present and highly active in her life since birth.
By the time of the hearing, it was apparent to the Court that the Mother had become far more reflective and better able to differentiate between her own needs and [X]’s needs. Clearly the litigation process has been a journey for her as it has, no doubt, been for the Father.
The Family Consultant was quite aware of the Mother’s concerns about how [X] was coping with the shared care arrangement. However the Family Consultant was clear, based on “two Family Reports and multiple conservations and observations of [X]”, that there were no attachment issues, that [X] was robust, healthy and had loving relationships with each parent, as well as a high developed sense of self, and a high degree of resilience (paragraph 55). Indeed, the Family Consultant concluded at 55:
All of these factors all augur well for an arrangement where [X] spends a substantial amount of time with one parent before returning to the other, without this necessarily needing to be a week one/week off arrangement.
The Family Consultant also recognised the conflict between the parents that was driven by what she described as “their immaturity and self interest” (paragraph 53). The Court wishes to record, however, that this not an observation the Court would make of the parents at the hearing itself. Nonetheless, the key point sought to be made by the Family Consultant at paragraph 53 is that [X] has escaped “the worst effects of being caught in the middle of parental conflict.”
It was also clear that the Family Consultant acknowledged that there were differences in parenting styles and parenting values, but her evaluation was that [X] “has absorbed their differences and happily adapted to each environment” (paragraph 56). Indeed, the Family Consultant concluded at paragraph 56:
To thrive in the future, [X] will need to spend quality amounts of time, in a regular and consistent way, with each of her parents and each parent should have the chance to be both a ‘good time’ and a ‘routine’ parent, as children benefit the most from being able to experience both types of care from each parent.
The recommendations commence paragraph at 57 as follows:
RECOMMENDATIONS
It is recommended that the parents equally share parental responsibility for the child [X].
It is recommended that [X] live with her mother.
It is recommended that [X] spend time with her father in the following way:
In Week 1, from Thursday after school until before school on Monday; and
In Week 2, from after school on Wednesday until before school on Friday.
It is recommended that this arrangement continue over the NSW school holidays until unless the parties agree to change it.
It is recommended that [X] spend Christmas Eve/Christmas morning with one parent, and the afternoon of Christmas Day and Boxing Day with the other, subject to rotation in alternate years.
It is recommended that both parents attend the ‘Parenting After Separation’ course run by Anglicare in Nowra (ph: 1300 651 728).
Ms C was cross-examined initially by Counsel for the Father and then by the Mother. The following points emerged from her cross-examination:
·She agreed in principle that school holidays should be shared but in her answer referred back to paragraph 60 of her Report and her recommendation that the school term contact arrangement continue over the school holidays, unless the parties agree to change it. The Court does not interpret the Family Consultant’s evidence in this regard to be an endorsement of block time in the school holidays, as was subsequently submitted on behalf of the Father.
·The Family Consultant had regard to [X]’s three most recent school reports. Her opinion was that the reports raised only normal developmental issues that could not necessarily be attributable to the parental conflict, as the Mother asserted. She confirmed her impression of [X] as a happy, normal, well-adjusted child.
·The Family Consultant felt that [X] needed a set of orders that promoted her security and stability, and thus flexible orders which were dependent on parental agreement would not work in this case. She said the orders need to be set in stone.
·When challenged by the Mother about the significance of overnights, the Family Consultant emphasised that sleeping time is important time spent with a parent because of the normal routine and rituals associated with going to sleep and waking up. Hence, even a reduction of one night time with her father each fortnight was not something to be minimised from [X]’s perspective.
·The Family Consultant was concerned about any reduction in [X]’s time with her father but she acknowledged that [X] would probably cope. [X] would also cope with block times, provided the parents agreed.
·The Family Consultant still preferred her recommendations that gave [X] six nights per week with her father and she was concerned that if that time were taken away, even in part, that there was a risk that [X] would internalise her feelings of self-blame for the change.
There was nothing in the cross-examination or in the further material put before the Court, including the Mother’s most recent Affidavit, that caused the Family Consultant to change her recommendations in any way. In these circumstances, and in the absence of new evidence from the parents, the Court feels obliged to accept the Family Consultant’s recommendations.
The evidence of the parents
Both parents gave evidence in a straightforward, matter-of-fact manner. They both made appropriate concessions, for example, about communication difficulties, different parenting styles and different beliefs about what was the most appropriate time arrangement for [X]. The Father could not understand how it could possibly be in [X]’s best interest to take a night away from him and the Mother could not properly articulate how it would be in [X]’s best interests to do so. Both seemed to be driven, at times, by their subjective notions of fairness of the orders, which distracted them, at times, from focussing on what was in the best interests of [X]. Both parents gave the impression, at times, of somehow thinking that they would be less of a mother or father to [X] if there was less time with them.
The Father was clearly concerned about a change that would see [X] spend less time with him and his extended family. The Mother was concerned that she was not having enough time with [X] and her extended family. The Mother had a perhaps misguided notion that, despite the fact that [X] lived with her for eight nights each fortnight, the time actually available to the Mother and [X] was measured in hours only because of [X] attending school, the Mother working or studying, etcetera. There are many problems with this notion. It ignores the reality of the same phenomena in the Father’s household. It ignores the fact that the Father’s proposal creates weekend time with [X] and her mother, something that does not exist at the moment. It possibly also distracts from the real issue, which is, how exactly the Mother uses her time with [X].
The evidence of the parents did highlight differences in parenting styles. For example, the Mother was absolutely “horrified” that the Father had sat down to watch with [X] the movie called ‘The Mummy’. She would not concede that was a relatively minor thing in the context of this family. The Mother’s description of [X]’s progress at school, evidenced by her school reports, as underwhelming, again reflects a different parenting style rather than an objectively based concern.
At the end of the evidence of both parents it was certainly not discernible to the Court that there were any problems with the existing shared care arrangement and that there were any concerns such as to justify changing it, other than restructuring the time in a way that sees [X] enjoying weekend time with both her parents.
Best interests of [X]
The Family Law Act contains a number of considerations to which the Court must have reference in order to make a decision that is in the best interests of [X]. These are set out in s.60CC of the Act. As the parameters of the dispute before the Court are in fact quite narrow some of these considerations may be dealt with very succinctly.
Meaningful relationship
There is no issue in this case about [X] having a meaningful relationship with both her parents – this will be achieved on any proposal before the Court.
Protection from harm
There are no issues about protecting [X] from harm of any sort.
Child’s views and the nature of her relationships
In the Family Report there is reference by the Family Consultant to what might be understood as [X]’s desire to spend more time with her father, but because of her age and relative immaturity, even as a highly intelligent child, the Court places no weight on this. [X] is blessed with excellent relationships with all the people around her.
Would that change, if the Court made an order as the Mother proposed, instead of leaving it as it is? The impression formed from the Family Consultant’s evidence is that, from [X]’s perspective, even a reduction of one night per fortnight might lead her to question whether there is something that she has done that has contributed to the decision to reduce her time with her father. Thus, from [X]’s perspective the nature of her relationship with her father might indeed change, even with a relatively minor reduction in the amount of time that she spends with him. This is a factor that the Court must take into account.
Parental involvement
There are no issues in this case about the extent to which each of the parents have been involved in decision-making and spending time and communicating with [X]. There is no question about obligations to maintain.
Likely effect of any change
The only change that would be proposed in this case is on the Mother’s proposal, that is, by reducing [X]’s time with her father. The Family Consultant does not believe that this is a good idea. There is some evidence to be concerned about the potential impact of [X]’s relationship with her father of so doing. In any event, there is simply no evidence before the Court, which either the Family Consultant or the Court accepts, indicating that it is actually in [X]’s best interests to make the changes in her circumstances that are contemplated in the Mother’s proposal.
Practical difficulty and expense
There are no issues of practical difficulty and expense in this case.
Parental capacity and lifestyle
There are no issues about parental capacity, maturity, sex, lifestyle and background, and attitudes to the child and to the responsibilities of parenthood.
Family violence
There were no issues of family violence raised at the final hearing.
Discussion
As mentioned earlier in these reasons, [X]’s mother and father are, in many ways, exemplary parents. They seem to have managed and contained any parental conflict. As foreshadowed in these reasons, there is every reason to be optimistic about [X]’s future.
A consideration of the relevant s.60CC considerations leads the Court to conclude that it is not in [X]’s best interests to reduce the amount of time that she spends with her father.
The orders that the Father proposes, consistent with the Family Consultant’s proposal, restructures [X]’s time in a way that, the evidence indicates, would only benefit her as well as her parents.
The school term changeovers occur at school. From [X]’s perspective, the proposed arrangement will be just as predictable as the existing one.
An issue arose about school holidays, with the Father preferring an arrangement for block time in the school holidays. The Mother was not very keen on this at all. An objective assessment of the Family Consultant’s evidence also suggests she did not favour the proposal. The orders will remain to the effect that the school term spends-time-with arrangement continues during the school holidays. It is quite possible, as [X] gets older, that she will be able to tolerate the longer absences from either parent, and the Court has confidence in the ability of these parents to implement such an arrangement.
There appears to be little contention about the orders for the special occasions and the other orders as proposed in the Father’s minute.
The Mother advocated for the continuation of the existing interim order to the effect that, on a without admissions and without prejudice basis, [X] not be left unattended in the care of the Father’s brother, Mr M. She gives evidence about this in her first Affidavit, at paragraphs 27 – 28. Clearly it concerns her. Clearly the Father recognised and accepted her concerns by agreeing to order 17 as it was framed, made 31 January 2013. What appears to have happened is that the Mother’s concern remains unabated, but the father believes that there is simply no objective evidence justifying such a restriction, and he urged the Court strongly not to perpetuate an unnecessary and, from his perspective, indeed offensive restraint.
From the Court’s perspective, the difficulty is that none of the evidence about this was tested in cross-examination, probably because it was not clear that it was an issue for the Mother until after the close of the evidence. All the Court can do is to take the Mother’s evidence at face value and assess whether, having regard to it, that evidence justifies making a final order to the effect that the child not be left unattended in the presence of the Father’s brother Mr M.
Paragraph 27 of the Affidavit the Mother sets out evidence about [X]’s paternal uncle offering to bathe [X] and put her in the shower with him. The Mother seems to date these events as being in April or May 2012. [X] was three or so at the time. Of course, [X] is now six and a half and it is hard to imagine a situation where any adult would consider it necessary to bathe her as such (as opposed to supervising her bathing herself) or get in the shower with her.
At paragraph 28, at least implicitly related to her evidence at paragraph 27, she deposes to drawings that [X] had prepared. Whilst it is possible, on one interpretation, to view the drawings in question as phallic, with great respect to the Mother, one would really need to be looking for a sexual connotation in what is otherwise a child’s attempt to depict her father and herself in the same picture.
Having regard to the Mother’s own evidence, therefore, it could not be said that there is a risk of harm to [X] that would require the restriction that she proposes, even on a without admission or without prejudice basis.
As the parents have agreed to equal shared parental responsibility, the Court must consider equal time or substantial and significant time, provided the same is in [X]’s best interests and reasonably practicable. Equal time is not sought. Either proposal advanced to the Court amounts to substantial and significant time. By making their proposals, both parents acknowledge their belief that their proposal is in [X]’s best interests and is reasonably practicable. The Court agrees.
Conclusion
The Court will therefore make orders consistent with the Father’s proposal and consistent with the Family Consultant’s recommendations.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Altobelli.
Associate:
Date: 27 August 2015
Schedule One
Orders sought by the Father in the Amended Application
That the parties have equal shared parental responsibility for the child [X] born [omitted] 2009
That the child live with the Mother
That the child spend time with the Father as follows:
3.1 In Week 1: From the conclusion of school (or 3.00pm) Thursday until the commencement of school (or 9.00am) the following Monday;
3.2 In Week 2: From the conclusion of school (or 3.00pm) Wednesday until the commencement of school (or 9.00am) the following Friday;
3.3 At other times as agreed between the parties
That the child shall spend time with each party for special occasions as follows:
4.1 In even numbered years - with the Father from 1pm Christmas Eve until 1pm Christmas Day and with the Mother from 1pm Christmas Day until 1pm Boxing Day;
4.2 In odd numbered years – with the Mother form 1pm Christmas Eve until 1pm Christmas Day and with the Father from 1pm Christmas Day until 1pm Boxing Day;
4.3 On Father’s Day – with the Father from 9.00am until 5.00pm
4.4 On Mother’s Day – with the Mother from 9.00am until 5.00pm
4.5 On the child’s birthday – with the party the child is not already spending time with for a minimum of two (2) hours on a school day and for a minimum of four (4) hours on a non-school day.
The parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
5.1 Any medical problem or illness suffered by any of the child whilst in either parent’s care;
5.2 Any medications that have been prescribed for any of the child;
5.3 Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding any of the child;
5.4 Any significant social, school or religious functions which the child is to attend;
5.5 The residential address of each parent and particulars of others who may reside with the child; and
5.6 Any other important matter relevant to the welfare of the child.
Both parents are entitled to attend all events involving the child including, but not limited to:-
6.1 Sporting functions;
6.2 Extracurricular activities that allow for parental attendance; and
6.3 School functions that allow for parental attendance including, but not limited to, concerts, school assemblies, sport days, parent teacher interviews, canteen duties and social functions, and the parent who has the child in their care on that day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from such event.
That each parent advise the other parent, and keep the other parent advised, of their current contact telephone numbers (including both landline and mobile number if applicable) and advise the other parent to any changes to these details within seven (7) days of such change occurring.
That each parent will authorise any relevant health or educational professional to provide the other parent with copies of school reports and any other reports, information and documentation relating to the health and education of the child.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of the child.
10.That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of the child.
11.That the Child shall spend time with the Father during school holiday periods in odd numbered years as follows:
(a)For the first week of the holidays following Terms 1 and 3;
(b)For the second week of the holidays following Term 2;
(c)For the second and fourth week of the holidays following Term 4.
12.That the child shall spend time with the father during school holidays periods in even numbered years as follows:
(a)For the second week of the holidays following Terms 1 and 3;
(b)For the first week of the holidays following Term 2;
(c)For the first, third and fifth weeks of the holidays following Term.
13.That the child shall spend time with the Mother during school holiday periods in odd numbered years as follows:
(a)For the second week of the holidays following Terms 1 and 3;
(b)For the first week of the holidays following Term 2;
(c)For the first, third and fifth weeks of the holidays following Term
14.That the child shall spend time with the Mother during school holiday periods in even numbered years as follows:
(a) For the first week of the holidays following Terms 1 and 3;
(b) For the second week of the holidays following Term 2;
(c) For the second and fourth weeks following Term 4.
Key Legal Topics
Areas of Law
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Family Law
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