Meeker and Loucks
[2010] FMCAfam 345
•19 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEEKER & LOUCKS | [2010] FMCAfam 345 |
| FAMILY LAW – Parenting – equal time or substantial and significant time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65 DAA |
| Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 |
| Applicant: | MR MEEKER |
| Respondent: | MS LOUCKS |
| File Number: | PAC 4893 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 15 March 2010 |
| Date of Last Submission: | 15 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Redmond Hale Simpson |
| The Respondent: | Self-represented |
ORDERS
The parents have equal shared parental responsibility for the Children [X] born [in] 2000 and [Y] born [in] 2001 (“the Children”).
The parents have sole parental responsibility for decisions regarding the day to day care and welfare of the child when they are in that parent’s care.
The Children live with the Mother.
The Children spend time with the Father as follows:
(a)Based on a 14 day period, the Children will live with the Father from the conclusion of school on Monday to the commencement of school on Wednesday in week 1 and from the conclusion of school on Friday in week 1 to the commencement of school on Wednesday in week 2.
(b)Each alternate Christmas commencing from 11am on Christmas Day to 4pm on Boxing Day in even-numbered years, and from 11am on Christmas Eve to 11am on Christmas Day in odd-numbered years.
(c)Each alternate New Years Eve commencing 2010 from 11am on New Years Eve to 11am on New Years Day.
(d)Each alternate Easter from 4.00pm on Easter Sunday to 7pm on Easter Monday in odd-numbered years and from 3pm on Good Friday to 4pm on Easter Sunday in even-numbered years.
(e)On Father’s Day between 9.00am and 6.00pm.
(f)In the event that Mother’s Day falls on a weekend when the Children would otherwise spend time with the Father, the Father’s time with the Children are to spend time with the Mother from 9am to 6pm.
(g)If the Father is rostered to work on any Father’s Day, Christmas Day, Easter Sunday or any other special day referred to in these Orders and the Children would ordinarily spend time with the Father on these days, the Children will be returned to the Mother for the duration of the Father’s rostered work shifts.
The Children spend four (4) periods of seven (7) nights in the Spring, Summer, Autumn and Winter gazetted school holidays with each parent, as agreed between the parties, noting the Father will not exercise his holiday time with the Children during the final two weeks of the Summer school holidays when the mother will spend holiday time with the Children, which will then be considered as two (2) of the mother’s seven (7) night holiday periods.
In the event that Mother’s Day falls on a weekend when the Children would otherwise spend time with the Father, the Father’s time with the Children are to spend time with the Mother from 9am to 6pm.
Each parent be responsible for transporting the Children to and from their school and/or residence during those periods when the Children are in their respective care.
Each of the Mother and Father be restrained from removing the Children from attending [E] School without the written consent of the other parent or order of the Court.
Each of the Mother and Father shall:
(a)Do all acts and things necessary to ensure the Children’s attendance at regular extra-curricular activities whilst they are in the care of that parent, provided that said activities are agreed between the parties to the extent that such activities may impact upon the time and finances of the other parent.
(b)
Notify the other as soon as possible and in any event within
24 hours of any serious injury or illness suffered by the children whilst they are in the care of that parent;
(c)Notify the other of the name, address and telephone number of the child’s treating health care practitioners and authorise that practitioner or practitioners in writing to release to the other at any time particulars of his health or any treatment requested by the other party;
(d)Notify the other not less than seven (7) days before the change of any proposed change to a party’s address or telephone number.
(e)Notify the other and keep the other notified of a telephone number where the Children may be contacted in the event of an emergency.
(f)Upon request supply to the other an authority to the school attended by the Children authorising the other to obtain from his school particulars of the Children’s welfare and progress at the school, school reports, school photographs, details of upcoming functions or activities and any other information disseminated by the school to parents of Children attending the school;
(g)Be at liberty to attend any school functions to which parents are invited.
The parents may telephone the Children on one occasion per day when the Children are with the other parent.
Each of the parents be permitted to take the Children on an overseas holiday at least once per annum for no longer than a ten (10) day period provided that two months’ written notice is given to the other parent together with a complete itinerary showing flight numbers (including return flight) specific accommodation details, phone and fax contact details and the person or persons with whom the Children will be spending time with.
Subject to Order 11, the parents each be restrained from removing the said Children from the Commonwealth of Australia without the consent of the other parent or and order of the Court.
Both parents are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the Children or permitting any other person to do so.
The parents are restrained from using the communication book for making subjective comments about the other or third parties.
The parents are restrained from taking the Children for assessment or treatment with any counsellor, psychologist or psychiatrist without the consent in writing of the other unless directed by the Children’s school or treating specialist doctor.
Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of one or more of the children or of one or more of the parties, each party is to take the following steps:
(a)The parties shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney general or;
(b)The parties shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Meeker & Loucks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 4893 of 2007
| MR MEEKER |
Applicant
And
| MS LOUCKS |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This application relates to two children, [X], who is nine years old, and [Y], who is eight years old. The children’s father is the applicant in these proceedings, and their mother the respondent.
The parents first met in 1995, formed a relationship in 1996, and were married in 1998. Both conceded that the marriage was problematic at various different times. There was a separation in 2002 followed by a reconciliation. Final separation did not occur until about March 2004. The parents subsequently divorced.
The father’s proposal before the court was, in effect, for there to be a shared parenting arrangement with the children spending equal time with each parent. He proposed that the children continue to attend [E] School where, he asserts, the children are well settled and are progressing well in an academic sense.
The mother’s proposal is, in effect, that she would have primary parental responsibility for the children, and that the father’s time with the children be maintained at its current level. The mother’s concerns in relation to the parenting arrangements is that, because of the father’s employment as a [occupation omitted] that involves shift work, the children are often in the substantial care of the father’s partner, Ms H. The mother objects to this. She maintains that the children do not spend sufficient quality time with their father and hence she opposes any increase in time.
A matter of importance to the mother is that the children should be transferred from their current school, [E] School, to [H] School, a school which is closer to where she lives. Indeed, the mother had enrolled the children at that school without consulting the father and when the matter came before me on 17 April 2009 I made an order the effect of which was to require the children to go back to [E] School where they had previously been attending.
It is common ground that the children have resided with their mother since separation and that there have been a series of ongoing conflicts between the parents, particularly around the amount of time that they spend with their father. In addition the mother raises concerns about the father’s behaviour and in particular asserts that he has been violent and intimidating towards her. She has obtained an apprehended violence order against the father, the details of which will be discussed in these reasons.
The father’s proposals are contained in an annexure to his affidavit sworn 21 February 2010. He seeks an order for equal shared parental responsibility and that the children live with him from the conclusion of school on Monday to the commencement of school Wednesday in week 1 and from the conclusion of school Friday in week 1 to the commencement of school Wednesday in week 2. This would provide, in effect, for the children to live with their father for seven days and nights each fortnight. The father also proposed orders in relation to special occasions and school holidays.
The mother’s proposal, as articulated to the court at the hearing, was that the existing shared care arrangement be reduced to five days each fortnight. However, during the course of the proceeding the mother indicated to the court that she agreed to the current order in relation to children, with the exception of schooling.
In this regard, the current order is an order that was made on an interim basis on 8 April 2009. The order in question provides for equal shared parental responsibility and for the children to live with the father from after school on Monday to the commencement of school on Wednesday and then from the conclusion of school Friday to the commencement of school Tuesday. In effect, therefore, the current order provides for the children to live with their father six out of every 14 days and nights each fortnight.
Despite the seemingly narrow compass of the dispute between the parents, ie, whether the shared parenting arrangement should be either six or seven nights each fortnight, each parent raised strong reasons as to why the order should be made as they proposed, and why their order was in the best interests of the children.
The evidence in this case consisted of the affidavits of the mother and the father and his partner, Ms H. In addition, a Family Report was prepared by a regulation 7 Family Consultant, Ann Grapsas. The report in question is dated November 23 2009 and was released to the parents the following day.
Issues
Having regard to the broad statement of introduction and background set out above, the issues in this case can be identified by reference to the considerations set out in section 60CC(2) and (3) of the Family Law Act. I will need to refer to each of the relevant considerations, having regard to the evidence that is adduced by each of the parents.
Before doing that, however, I intend to deal with the expert evidence. Neither parent required the Family Consultant to be cross-examined or to give evidence in any other way.
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 the new 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, I am 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 I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines 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).
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 willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Expert Evidence
The Family Report prepared by Ms Grapsas follows the usual form. She had referred to all of the affidavits of the parties that had been filed as at the time that she conducted the relevant interviews in September and October 2009. The Family Consultant interviewed both parents, Ms H, and the two children. She obviously had the benefit of being able to observe the interaction between the children and each of their parents.
At paragraphs 33 and 34 of her report, the Family Consultant noted that as a result of her interview with the children that both confirmed that they enjoy attending school and have many friends. Both boys explained that they were aware of the reason for the assessment. She noted that [X] said he was happy to spend time with both parents although he could not decide how much time with each parent, but [Y] was adamant he would like to spend equal time with each parent.
She noted that [X] said he would be happy to change school and attend [H] next year, whilst [Y] was equally certain he wished to continue at his present school. However, [X] did not express dissatisfaction with the present school and mentioned that he had lots of friends there.
During the Family Consultant’s observation of the family she observed that [X] interacted positively with his parents and remained alert and responsive throughout the assessment process. She noted that there were no strains or difficulties in these relationships. Exchanges between [X], the parents, his brother and Ms H, were comfortable, affectionate, uninhibited with no signs of anxiety or insecurity. She noted that the bonding and attachment between [X], his parents and brother is deemed to be secure and comfortable.
In relation to [Y] she noted that he is a friendly eight year old boy whose behaviour was somewhat attention-seeking throughout the assessment process. She described him as a lively youngster who was playful and engaged in robust play with his brother. She thought that he was meeting his developmental milestones appropriately and that there were no obvious concerns regarding his cognitive, social and intellectual development at this time. [Y] also interacted freely with his parents, his brother and Ms H. The Family Consultant thought that [Y] has a particularly strong sibling bond with his brother.
The Family Consultant notes at paragraph 41 that overall, the interactions between the parents and the children were comfortable, affectionate and uninhibited, with no obvious signs of anxiety or insecurity. Therefore the bonding and attachment between [X], [Y] and both parents is deemed to be secure and comfortable. The court notes that this is an important and unchallenged finding of an expert that needs to be considered in the context of the mother’s allegations about family violence.
The Family Consultant was, of course, able to discuss with each parent their particular views about the issues before the court. In relation to the mother and her preference for a school at [H], the Family Consultant noted the mother’s view that if the children remain at [E] this increases their travel time and her perception is that they become irritable and physically fatigued which, in turn, adversely impacts on the time they have available for homework as well as leisure, sporting and other time. The mother also expressed her concern about the deteriorating behaviour of [X] at home and school since he was returned by court order to [E] School.
In relation to the parenting issue, the mother expressed concern to the Family Consultant about the role that Ms H plays in caring for the children, particularly given the father’s shift work as a [occupation omitted]. The mother also expressed concerns to the Family Consultant about what she described as the father’s unpredictable temper and that he is prone to violent outbursts involving both physical violence and verbal abuse in the presence of the children. The mother expressed to the Family Consultant her view that the father intimidates the children, are fearful of him and unlikely to express any opinions or wishes contrary to those held by the father. Notwithstanding the obvious concerns that the mother had in relation to the father, the Family Consultant noted that the mother clearly understood the importance of the children establishing and enjoying a close relationship with the father, and was committed to fostering and encouraging this.
The father was also able to express his views about the relevant issues to the Family Consultant. He totally rejected the mother’s claims about violence and intimidation as being fanciful and gross exaggerations. He disputed the mother’s accounts of classroom misbehaviour by [X] and emphasised that, in fact, both children were progressing well at school both academically and socially. The father disputed the mother’s assertions about inconvenience in relation to travel and asserted that the extra travel time was insignificant and, moreover, neither of the children had expressed any concerns about this to him. The father expressed a number of concerns about the standard of care that the mother provides for the children and her inappropriate use of the communication book. He asserted that a shared parenting arrangement involving equal time was one that was in the best interests of both children. The court notes that the cases that were advanced on behalf of both the mother and the father at the hearing are consistent with the concerns expressed to the Family Consultant.
The Family Consultant’s assessment is found at paragraphs 54 onwards of her report. There is a real sense in which she was impressed with both the mother and father. She states at paragraph 56:
After studying the documents provided for the preparation of this report, interviewing the parents and observing the parents with their children, I have formed the opinion that both are caring and concerned parents who love their children and are capable of providing excellent care to them. Undoubtedly there is a secure and confident bond and attachment between parents and children evident in this matter, and [X] and [Y] impresses as confident and happy children who love their parents and thrive in spending time with both. For these reasons, it is important that both parents spend time with the children in order to preserve and enhance this bond and relationship with them both. For this to be accomplished successfully the parents would need to redouble their efforts to establish a more cooperative relationship and overcome any perceived or real frustrations and negative feelings towards each other in order to focus on their children.
The Family Consultant also noted that the children made it abundantly clear that they love both parents and would be comfortable in both households. She noted that [Y] was certain he would like to divide his time between the parents, whilst [X] was more circumspect about these issues but said he would be happy to spend more time with the father.
At paragraph 57 the Family Consultant states:
Taking into account the open and forthright manner the children adopted in articulating their feelings on most issues, it is felt that the court should take these into serious consideration in deciding this matter.
The Family Consultant recommends, at paragraph 58, that the children, [X] and [Y], reside with the parents on a week-about basis. She was satisfied that these arrangements would be manageable as both children had become accustomed to moving between the parents who reside in reasonably close proximity, and therefore there would be minimal disruptions to their routines.
The Family Consultant recommended equal shared parental responsibility and that both parents should be referred for further mediation or family therapy in order to resolve some of the ongoing outstanding issues causing conflict and concerns to the parents as well as the children. A most important issue to be addressed through mediation should be improved communication between the parents.
I accept the unchallenged evidence of the Family Consultant. Neither parent advanced any evidence at the hearing which would cause me to have any reservations about the recommendations made by the Family Consultant.
Meaningful Relationship
It is abundantly clear from the expert evidence that both children enjoy a meaningful relationship with both of their parents. It is also clear that the children enjoy a good relationship with Ms H. The proposals of both parents would further this meaningful relationship, and in fact, do nothing to detract from this meaningful relationship. If there is to be a preference in favour of the father’s proposal of equal time, it is quite likely that this consideration would be neutral.
Protecting the Children from Harm
The mother represented herself in these proceedings, though she was represented by a solicitor at an early stage. Even allowing for the fact that the mother was representing herself, there is a strange dissonance between her proposal before the court, ie, maintaining the existing orders, and the concerns that she expresses at various different points in her evidence about the father’s violence, intimidation and abusive behaviour, both towards herself and the children. The mother’s evidence about these issues is contained at a number of different places in her affidavits. There is no doubt that an apprehended violence order was made against the father as a result of an incident that took place on Saturday 28 March 2009 at a sporting venue where the children were playing rugby league. The evidence about this consists of a copy of the application for an apprehended domestic violence order, together with various paragraphs in the mother’s affidavit of 15 April 2009. As a result of this event an apprehended violence order was, in fact, made against the husband and remains in effect. The father was also charged with assault. He pleaded guilty to two charges, being common assault and malicious damage, all arising out of the incident at the football field on 28 March 2009. A section 10 good behaviour bond for six months was granted in relation to these two matters which were otherwise dismissed without a conviction being recorded. The father states in his affidavit that he is very regretful of this incident.
The incident in question was indeed regrettable, particularly as it was played out in the presence of the children and in public. It is impossible to defend the father’s behaviour. However, the manner in which the mother acted is hardly consistent with an appreciation of the potential risk to the children as a result of her behaviour. It is common ground, even on the mother’s case, that she attempted to record a conversation with the father, without his consent, and in circumstances where she had unilaterally changed the children’s schooling and where the father was being informed of this fact for the first time. The mother’s insensitivity about this event is of concern. True it is that she suffered violence but, when this violence is viewed in context, it cannot, in the absence of other evidence, be seen as part of a pattern of violence or control. The incident arose in a situation that was almost intended to be stressful and where there was a high risk of something occurring. The mother either should have known this or did, in fact, know it. Indeed, the fact that she attempted to record the father’s response is indicative of some apprehension on her part that there could be an incident. As I have indicated before, the father’s actions cannot be justified in any way. However, the mother’s actions are of concern as well. In any event, I find that the incident that occurred on the date in question at the football field is an example of situational violence, rather than any more controlling form of violence.
The mother makes other allegations of violence. For example, she annexes to her affidavit of 13 May a letter from Dr B dated 4 April 2009 in which there is reference to [X] having witnessed a violent incident and saying that he did not want to visit his father. However, the report in question is of doubtful weight. It is by no means clear that this document is evidence of a disclosure that is made by [X] himself. It is clear that the mother was present at the relevant time and had given a history to Dr B of an assault, allegedly the night before.
The mother also makes other allegations in her affidavit of 15 April 2009 in relation to an assertion of history of domestic violence including assaults on her, her other son [Z], and on [X]. The allegations, curiously, are not included in the statement that the mother gave to the police in support of her apprehended violence order as a result of the March 2009 incident.
The mother’s explanation for this in cross-examination left me wondering whether in fact the earlier incidents had, in fact, occurred. The mother sought to establish in her cross-examination of the father that he had acknowledged being violent towards her at an earlier stage of their relationship. She tendered two letters which the father accepted he had written to her. However, the letters in question do not support the mother’s allegation of violence and accordingly the matter can be taken no further in that regard.
As I indicated at the beginning of my discussion of family violence, the most curious inconsistency in this regard is that the mother maintains her proposal for six out of 14 nights with the father, notwithstanding the alleged history of family violence. Moreover, the Family Consultant’s observations of the children indicate that they are well adjusted and seem to have an excellent relationship with their father, a matter which I take to be quite inconsistent with the mother’s allegations.
In the circumstances of this case, whilst I accept that there have been periods of volatility in this relationship, and that there was an incident in March 2009, I am not prepared to find that there is any need to protect the children from physical or psychological harm, from being subjected to, or exposed to any family violence. I note the existence of the current AVO.
Children’s Views
I am satisfied from the evidence of the Family Consultant that the children’s views are consistent with wanting to spend more time with their father, and not less time. I am also satisfied from this evidence that at the very least the children seem to be content with remaining at [E] School and have not expressed a positive view about changing to [H] as proposed by their mother.
I do record, however, that the only weight that I am prepared to place on evidence about children’s views is the evidence of the Family Consultant. I do not place weight on the children’s views as expressed in the affidavits of the mother and the father. I believe there is a sense in which those views may have been expressed in a context where the children were seeking to please their respective parents.
Willingness and Ability to Facilitate and Encourage Relationship
Despite the level of conflict that has existed in this family from time to time, there seemed to be no serious issues about the capacity of either parent to foster an ongoing relationship between the children and the other parent.
The mother, in particular, and notwithstanding the concerns that she has about the father’s parenting, has sought to encourage an ongoing relationship. This very much to her credit and is very much in the best interests of the children.
Likely Effect of Changes in the Children’s Circumstances
Neither of the proposals advanced by the parents presents any significant change for the children, except the mother’s proposal for a change of school. The evidence indicates that [E] is the school that the children have attended for most of their school lives. The evidence also indicates that the additional travel involved from the mother’s home in [H] to the school at [E] is not so significant as to create any concerns in the court’s mind about the children’s capacity to cope with the travel.
This consideration points towards keeping them in their present schools as well as certainly not reducing the amount of time that the children spend with their father.
Practical Difficulty and Expense
The evidence indicates that the children are coping reasonably well with the shared parenting arrangement which is already in place. As I have indicated before, I do not consider the geographical distances that separate the respective households and the children’s school to be one where practical difficulty and expense is created. On balance, this family has coped well with the shared parenting arrangement.
I acknowledge that there was some evidence that [X] was experiencing behavioural and academic problems at school. I also acknowledge, however, that both parents seem to have responded appropriately to this. I accept the father’s evidence that since his misbehaviour was drawn to their attention, things seem to have settled down. There is no doubt that both these children are caught up in the parental conflict. One can only trust that once this litigation is completed that the pressure on the children will be relieved.
I also recognise and acknowledge that the father is a shift worker. He set out in detail in his evidence the impact of his shifts and how he manages them. Despite the opportunity to do so, the mother was not able to criticise or find fault with his proposals. The father is, like many other parents, forced to work shifts in the course of his employment. Families adapt to these circumstances, and the evidence is that the children have adapted quite well. The children have the benefit of the father’s partner, Ms H as someone who can support him in his parenting.
At the hearing it was clear to the court that the mother’s feelings about Ms H had improved considerably from earlier times when there was a certain frostiness in that relationship. This is very commendable from the children’s perspective.
Capacity and Attitudes of Parents
There is very little about the behaviour of both parents that would contra-indicate them being able to work together in a shared parenting arrangement. Indeed, at the hearing itself, and despite ample opportunity to do so, there was minimal criticism that was made of each other’s parenting capacity or attitudes about parenthood.
This is not surprising, given the observations of the Family Consultant about the parents and the children. Indeed, I said to the parents at least once and probably more than once during the course that this matter was in my docket, that I was surprised that they were litigating this matter in circumstances where they seemed to be functioning so well as a family in the post-separation period.
There is every reason to be optimistic about the prospects for [X] and [Y] in the respective households of both their mother and their father. True it is that there exist and may even continue into the future, communication problems between the parents. One wonders how much of this is created as a result of the litigation and the uncertainty that this creates in the lives of families.
What is in the Children’s Best Interests?
Having regard to the matters set out above, and the relatively narrow ambit of the dispute between the parents, a consideration of the matters set out in section 60CC(2) and (3) lead me to conclude that it is not in the best interests of the children to have their school changed to [H] as proposed by the mother. However, it is in the best interests of the children for them to spend additional time with their father. That is certainly consistent with their views and it does, in any event, address some of the concerns that the mother has about travel time to school.
The parties each agree that there should be an order for equal shared parental responsibility and this, of course, leads me to have to consider whether equal time is in the best interests of the children and is reasonably practicable. I am satisfied, on the basis of all the evidence before me, that equal time is in the best interests of the children and that it is reasonably practicable, having regard to where the parents live and their ability to communicate with each other, their demonstrated capacity to implement arrangement for shared care in the past, and the minimal impact that an equal time arrangement will have on the children.
Inherent in the father’s proposal is the unique benefit that would be available to him and the children by having an additional night, namely that this is a night when his partner’s children are not in the household and thus enables him to have quality time with his children. Accordingly, not only is there no reason not to increase the time, but that there are positive reasons why the time should be increased.
I therefore do not agree with the tenor of the mother’s case about the additional disruption that would be caused by implementing a shared care arrangement.
Orders
Having regard to all of the above matters, I intend to make orders in terms of that sought by the father. I am satisfied that its treatment of how the children’s time between the parents is structured is a sensitive and child-focused one. The same approach is evident in how he has structured the children’s time during special occasions and holidays.
I note that one of the orders sought by the father is an order that neither parent reside further than 25 kilometres from the children’s current school at [E] School. No specific submissions or evidence was given in this regard by either parent though the wife did indicate in her closing submissions that she planned to stay in the [H] area for the foreseeable future.
I am, nonetheless, concerned about making an order in these terms without the benefit of further evidence from either parent, or at least having the benefit of detailed submissions in this regard. Accordingly, I decline to make order 7.10 as was originally proposed by the father.
I intend to include orders for the parents to be able to resolve any issues that arise in relation to parenting without having to come back to court. I am satisfied that this is the spirit and intent of the legislation and that it is in the best interests of the children.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
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