Merla and Merla

[2018] FCCA 512

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERLA & MERLA [2018] FCCA 512

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children – orders made.

Legislation:

Family LawAct 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Gaetano & Gaetano (2017) FamCA 95
Re G: Children’s Schooling [2000] FamCA 462
Kirkland & Granger [2007] FamCA 1471
Raymond & Harold [2009] FamCA 155

Applicant: MR MERLA

Respondent: MS MERLA

File Number: PAC 5685 of 2017

Judgment of: Judge Newbrun

Hearing date: 27 February 2018

Date of Last Submission: 27 February 2018

Delivered at: Parramatta

Delivered on: 5 March 2018

REPRESENTATION

Counsel for the Applicant: Mr West of Coleman Greig Lawyers

Solicitors for the Applicant: Mr Kent of Kent Attorneys

ORDERS PENDING FURTHER ORDER

1. The children shall live with the mother, except when spending time with the father in accordance with these Orders.

2. The children shall, during school term times, spend time with the father on a fortnightly basis, from the conclusion of school (or otherwise 3 PM) Thursday until the commencement of school (or otherwise 9 AM) Monday, such time commencing on Thursday, 15 March 2018.

3. Changeovers for the above time to be spent by the children with the father shall occur by the father collecting the children from their respective schools on the designated Thursday, and by the father taking the children to their respective schools on the designated Monday.

4. The children shall spend time with the father for one half of each of the school holiday periods, as agreed between the parents, and failing agreement, for the first half of the school holidays for years ending in odd numbers, and for the second half of the school holidays for years ending in even numbers.

5. Changeovers for the above holiday time to be spent by the children with the father shall occur at (omitted) McDonalds, unless otherwise agreed in writing.

6. The parties shall forthwith do all things necessary to ensure that the children attend school as follows:

   (a)W at (omitted) High School;

   (b)X at (omitted) High School;

   (c)Y at (omitted) Public School;

   (d)Z at (omitted) Public School.

7. The parties shall have equal shared parental responsibility for the children.

8. Pursuant to section 62G(2) of the Family Law Act1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

   The Family Report to deal with the following matters:

   (a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.

   (b)The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);

   (c)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 the parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has/have been living.

   (d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.

   (e)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 report writer thinks are relevant to opinions expressed in the report.

   (f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

   The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5685 of 2017

MR MERLA

Applicant

And

MS MERLA

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing related to the children, W born (omitted) 2003, X born (omitted) 2005, Y born (omitted) 2009 and Z born (omitted) 2012.

2. The father seeks an equal time shared care arrangement, including equal shared holidays and other discrete times to be spent by him with the children.  He seeks Orders that the children attend schools in the (omitted) area.

3. The mother seeks Orders that the children during school term times spend time with the father each fortnight, from Thursday after school until the commencement of school Monday.  She seeks Orders that the children attend schools in the (omitted) area.

Material relied upon by the parties

1. The father relied upon his Case Outline filed 21 February 2018. His documents relied upon were set out in his Case Outline.

2. The mother relied upon her Case Outline dated 20 February 2018. Her documents relied upon were set out in her Case Outline.

3. Both parties relied upon the Child Inclusive Conference Memorandum dated 23 February 2018.

Agreed or undisputed relevant facts unless otherwise stated

1. The mother is aged 39 years, and the father is aged 46 years.  The mother works as a (occupation omitted), and the father is a (occupation omitted).

2. The parties commenced cohabitation in about 1998. 

3. In 2008 the father received inpatient treatment at a mental health clinic for misusing alcohol and codeine.  In 2009 the father disclosed mental health issues to the (employer omitted) and was deregistered for four months.  From 2009 to 2011 the father did not work for fourteen months due to his mental health issues.  In 2010 the father was granted registration to continue working as a (occupation omitted) with no restrictions or conditions placed on his (occupation omitted).

4. The child W has had issues with anxiety some years previously and was required to attend upon a psychologist for a brief period, which was successful in helping him manage his anxiety.

5. The parties separated under the one roof in August 2016.  During this period, the father spent six nights each fortnight with the children but would otherwise come into contact with them daily.

6. In September 2017 the mother left the former matrimonial home (in (omitted)) to live in (omitted) with her parents.  The mother asserts that she intends to live in the (omitted) area with her parents (either two houses on the one property or living in the same house with them).  She asserts that she needs the support of her parents to care for the children, in particular when she is working. 

7. In about September 2017, the husband obtained rented premises at (omitted). The father continued to spend time with the children six nights each fortnight.

8. From about October 2017 to December 2017 the children attended schools in the (omitted) area.

9. From about October 2017 the children spent time with the father for four nights each fortnight, from Thursday after school until before school on Monday.

10. On 29 January 2018 this Court made interim Orders pending the current interim hearing.  Inter alia, the court ordered that the child W continue to attend Year 9 at (omitted) High School.  The other children were ordered, pending further Order, to attend schools in (omitted).

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled:  see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

3. The Court also refers to the recent decision of the Full Court of the Family Court in Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

4. Section 60B of the Family Law Act1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

5. In deciding whether to make a particular parenting Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. If the presumption of equal shared parental responsibility in relation to the child applies (see section 61DA of the Act), and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

8. If equal time is found not to be in the child’s best interests or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spend substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests, as a result of consideration of one or more of the matters in section 60CC, or impracticable.

9. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: section 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2)(a): meaningful relationship primary consideration

1. The children have a meaningful relationship with both parents and would benefit from a continuance of those relationships. 

2. During the parties’ relationship, it is quite arguable that the mother was the primary carer of the children, although it would appear that the father assisted the mother significantly in the care of the children (with the Court noting that the father was not working for a period of about fourteen months in 2009 to 2011 by reason of mental health issues, and that he asserts that in the period since 2015 he had health issues requiring him to take considerable time off work).  It appears to be common ground that the mother took significant maternity leave following the birth of each child.  The father contends that his usual work hours were between 38 to 40 hours per week, which the mother disputes.  It would appear that following the birth of the children the mother’s work was only part-time work.

3. Post separation, and whilst the parties lived under the one roof, and for a short period thereafter, the mother’s care of the children was for eight nights each fortnight and the father for six. Then from about October 2017 to date the mother has been the children’s primary carer, with the father spending fortnightly time with the children from Thursday after school to before school on Monday.

4. The Court is of the view that the children’s meaningful relationship with the father can be maintained by the children continuing to spend time with him for four nights per fortnight during school term times, together with holiday time.

5. It would appear that the children’s meaningful relationship with the father has been maintained during this period since October 2017, when they began to live primarily with the mother.

6. The Court is of the view that the children’s meaningful relationship with the mother should not be detrimentally affected by spending such time with the father. 

7. The Court gives significant weight to this meaningful relationship primary consideration. 

Subsection (2)(b): the need to protect primary consideration

1. The father told the family consultant that he had not had any restrictions on his practice as a (occupation omitted) since 2015.  He told her that he had used codeine appropriately, twice since 2009, due to his medical condition, Crohn’s disease, which can cause him significant pain.

2. The mother told the family consultant that, as far as she was aware, the father had not used substances in a problematic way between July 2009 and January 2017.  She expressed concern to the family consultant that the father had used codeine for pain relief in January 2017, but she could not identify any indicators that this use was inappropriate or ongoing.

3. In the mother’s Affidavit, she asserts that there have been occasions when the children have been in the father’s care and the father has been ill and unable to adequately care for the children. Moreover, the father has allegedly failed to communicate with the mother his illness (in this latter context, relating to communication between the parties, see below under “Equal time”).  The father, for his part, denies that there has ever been any occasion when he has been unable to care for the children, and asserts that when he has been ill he has engaged the assistance of the paternal grandmother to care for the children.

4. The father told the family consultant that he had been diagnosed with major depressive disorder since he was a teenager, but stated his last episode occurred between 2003 and 2009, and may have been related to his substance abuse issues.

5. The Court is of the view that there is no significant need to protect issue at this interim stage. The relevance of the mother’s concerns and allegations relating to the father’s alleged use of codeine in January 2017 and alleged failure to notify the mother when he was ill when the children were in his care, relate to the significant difficulties that these parties have in adequately communicating with each other. In this context the Court refers to its discussion below under the heading “Equal time”.

Subsection (3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. This additional consideration is discussed below.

Subsection (3)(b): the nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the child)

1. The children also have positive relationships with their grandparents.

Subsection (3)(c): the extent to which each of the children’s parents have taken opportunities to, inter alia, spend time with and communicate with the children

1. Both parents appear to have taken such opportunities. 

Subsection (3)(ca): the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children

1. According to the father, from 1 December 2017 he has been required to pay some $802 per month for child support to the mother.  The mother asserts that the figure is $977.  The mother contends that the father is currently in arrears in payment of child support.

2. The father tendered a draft balance sheet which refers to his alleged liabilities for unpaid tax in 2017 and previous years amounting to some $20,000 (albeit having an instalment arrangement to pay $500 per month), and credit card debt of some $4,470 .  The father refers to arrears of school fees in the sum of about $5,810. The mother asserts that private health insurance for the children is with (omitted) Fund and payments are constantly in arrears.

3. The Court also refers in this context to the mother’s financial circumstances discussed below.

Subsection (3)(d): the likely effect of any changes in the children's circumstances, including the likely effect on the child of any separation from either of their parents

1. The Court refers to its discussion below relating to the schools issue and equal time.

Subsection (3)(e): the practical difficulty and expense of a child spending time with and communicating with the 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

1. The Court refers to its discussion below relating to the schools issue.

Subsection (3)(f): the capacity of each of the children’s parents to provide for the needs of the child, including emotional and intellectual needs

1. Both parents would appear to have such capacities, although the mother contends, disputed by the father, that the father has on occasion been ill and unable to adequately care for the children then in his care. 

Subsection (3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. The mother asserts that the child W, when he was younger, had some anxiety issues and was quite introverted.  When he was ten years old, he participated in a clinical program developed to help children deal with anxiety issues called “Cool Kids”.  She asserts that with the help of the program and W getting older, he no longer has any issues with anxiety and is no longer introverted.  She asserts that this child is a responsible and sensible boy.  She asserts he is only an average student academically and has had some learning difficulties in the past.

2. The father also refers to W’s previous successful treatment for anxiety, however, he expresses concern that W might be affected by changing schools.

Subsection (3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Both parents appear to have sought to demonstrate appropriate attitudes to the children and to the responsibilities of parenthood.  The father contends that the mother has failed to include him in long-term decision making for the children, and has in certain respects acted unilaterally in relation to the children. 

Subsection (3)(j): any family violence involving the child or a member of the child's family

1. Not applicable, however the family consultant took a history from the mother of alleged controlling behaviour by the father towards the mother during the relationship.

Subsection (3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. At this interim stage, the Court is of the view that interim parenting Orders, as discussed previously under the meaningful relationship primary consideration, would be least likely to lead to the institution of further proceedings in relation to the children, as opposed to the Court making an interim parenting Order imposing an equal shared care parenting regime, and the Court refers to its discussion below relating to equal time.

Subsection (3)(m): any other fact or circumstance that the court thinks is relevant

1. The Court now deals with the schooling issue, and will state the relevant views of the children (both as to “time with issues” and schooling).

2. The Court refers to Foster J’s decision in Gaetano & Gaetano (2017) FamCA 95 where he stated, in relation to schooling, inter alia:

   The question of children’s schooling was considered by the Full Court of the Family Court in Re G: Children’s Schooling [2000] FamCA 462. The Full Court in re-exercising the discretion proceeded on the basis that (at [65]):

   ... although there is no legal presumption in favour of the resident parent and, correspondingly, no hurdle or onus faced by the other parent, that is not to say that the reality of the children residing predominantly with one parent has no relevance.

   Cronin J in Kirkland & Granger [2007] FamCA 1471 said at [60]:

   There is little doubt therefore that an impasse between parents relating to both current and future education is a matter within the definition of parental responsibility and one which should the parties not be able to agree upon, a court should step into their shoes. The Act gives no guidance as to how that decision-making process is to occur save that any decision must be in the best interests of the child. Section 65D(1) says that the court may make such parenting order as it thinks proper.

   Young J in Raymond and Harold [2009] FamCA 155 said at [204]:

   ... There are many reported decisions of this court dealing with the determination of the appropriate school, the most often cited of which is the decision of the Full Court in Re G: Children’s Schooling [2000] FamCA 462 where the various factors considered by that court on the schooling issue included:

   ·   the wishes of the child, where appropriate;

   ·   any prior agreement in relation to schooling;

   ·   any change to the existing arrangements;

   ·   any anxiety which the child may experience as a result of changing peer groups;

   ·   the views of the parents about the aspect of change upon a child;

   ·   the travel time to school;

   ·   the costs of education;

   ·   any particular issue that may have a real impact upon the child and his immediate schooling and social environment.

   The above list of matters is not exhaustive. They vary from case to case and are always to be tailored to the individual needs of the child.

3. The child W (Year 9 in 2018) told the family consultant that he wishes to remain at his current school, (omitted) High School, as his friends are there, and the school has been supportive of his anxiety.  He stated that it is easy for him to get there from the father’s house, but not the mother’s house. He stated that he believes that he can sustain the travel necessary to get to his present high school each day, and if this becomes too difficult he can stay with his father more.

4. W told the family consultant that he would like to spend more time with the father, in order to avoid catching so many buses, and also to “hang out” more with the father.  In this context, the father in his last Affidavit asserts that this child told the father recently that he wants to live with the father every Monday and Tuesday so that he doesn’t have to travel from the mother’s home to school.  The Court would interpolate at this point that it would not be in the best interests of the children, including W, that W be separated from his siblings through spending more time with the father compared to the other children.

5. The father asserts that this child is settled at this present school, has a close circle of friends, and has responded positively to the learning environment in his current school.  He referred to W’s present school being instrumental in assisting him to function well.   The father also refers to recent arguments that W has had with his mother in relation to this issue.

6. The Court notes again, that both parties had referred to this child’s anxiety having been successfully treated some years previously through a psychologist.

7. The father told the family consultant that this child had told him that even if ordered to change school, he would get on a bus and travel to (omitted) High School.

8. On the other hand, the mother told the family consultant that W would comply with Orders to change schools if the Court chose this.

9. The mother told the family consultant that the time W currently spends travelling is impacting on his social connections, and his ability to engage in extracurricular activities.  She also stated that she believes that W is likely to arrive late to school much more frequently if at his present school, and is not able to make the trip if no one is available to support him to get to the bus stop each day.  She also expressed concern that he had missed the bus or caught the wrong bus on a number of occasions.

10. These concerns of the mother were referred to in the mother’s Affidavit filed 19 February 2018, in which she asserted that after she moved to (omitted) in September 2017, W started catching three different buses to get to school in the morning.  It took about 1.5 hours to get to school, so W would leave home at about 6:40 AM.  He also caught three buses in the afternoon, taking over two hours, arriving home well after 5 PM.  She stated that those times would vary, because if the first bus was running late, he might miss the second bus and have to wait longer for the next bus.  In contrast, the mother asserts, changing to (omitted) High School would require one bus each way, taking about 20 minutes.  She asserts that on two occasions when W was catching the bus to or from school, he caught an incorrect bus and ended up at (omitted).  When that occurred, the mother asserts that he telephoned the mother and she made arrangements to collect him.

11. The father asserted that it had always been the intention of the parties that the children would attend either (omitted) High School or the (omitted) School in the (omitted) area.  On the other hand, the mother stated that the parties’ discussions in relation to the children’s schooling occurred prior to their separation in 2016.

12. The mother asserted that she believes that such long travel times are not sustainable for W in the long-term, as they take away time for him to study at home, time to attend any extracurricular after-school activities, and time for leisure.

13. Whilst the Court takes into account W’s expressed views in relation to wishing to remain at his present school, in the view of the Court, at this interim stage his views are outweighed in particular, by the impracticalities of travelling by significant time-consuming public transport to and from the mother’s residence at (omitted) to his present school, with quite arguable resultant adverse impacts upon his schooling and extracurricular life.  In this context, the Court should state that it proposes (see the discussion below) to accede to the mother’s proposals that the children primarily live with her and spend time with the father from after school Thursday to before school Monday on a fortnightly basis, during school term times.

14. The Court takes into account, in relation to the father’s contention that the mother should drive W to school, inter alia, the mother’s asserted financial circumstances, including having no savings, earning about $350 net per week and receiving child support payments, which monies are used to meet day to day household expenses, and being presently unable to meet rental payments to her parents.

15. On the material before the Court, there is a significant prospect that this child will transition well to (omitted) High School without significant anxiety; inter-alia, the mother asserts that this child is a responsible and sensible boy, is socially adept and makes friends easily, he will have his sister X attending the same school, and he should be able to keep in touch with his old school friends through social media.

16. The child X (Year seven in 2018) told the family consultant that she was now used to the new parenting arrangements.  She stated that if arrangements were to go back to what they had been, it would be more “equal” for her parents.  X told the family consultant that that she is happy at (omitted) High School and does not want to change.  The father told the family consultant that this child is quiet, but copes well and that he believes she is happy at (omitted) High School.  The Court gives some weight to her views.  This child will arguably encounter the same adverse travel issues with resultant adverse impacts on her day to day life, as discussed above, if travelling to and from (omitted) to her former school at (omitted).

17. The child Y (Year 3 in 2018) told the family consultant that she likes school and has a couple of friends at her new school, but that she preferred her old school.  This child told the family consultant, inter alia, that she does not like that she sees the father less than before.  The father asserts that she did not want to leave her friends.  The mother stated that this child is very bright and outgoing and makes friends easily.  The mother’s recent Affidavit asserts that this child appears to have settled in well to her new school.  Whilst the Court gives some weight to this child’s views, it does not place significant weight upon them, noting her age.

18. The child Z (kindergarten in 2018) stated he would like to go to the father’s home more. However, this child is too young for the Court to place any significant weight upon his views.  The father told the family consultant that Z is resilient.  The mother told the family consultant that (omitted) Public School is the only school Z has attended and he appears to be happy there since starting kindergarten in February 2018.

19. The mother asserts that if the children Y and Z attend their former schools in the (omitted) region, she (or her parents when the mother is working) would need to drive about 20 kilometres each way to drop off and pick them up. This would take between 30 to 40 minutes each trip, and sometimes longer, depending on the traffic. (The Court interpolates here that even if these children were to somehow travel with the children W and X by public transport to and from their former schools, they would arguably encounter the same adverse public transport issues.)

20. In this context, the Court notes that the mother is currently working on Wednesdays (8am to 2pm) and Fridays (10am to 2pm).  The mother leaves her home for work on Wednesdays at about 7:20 am.

21. The father asserted that his proposed schools have superior Naplan results.  The mother, on the other hand, asserted that the (omitted) High School has about half as many pupils as (omitted) High School, which will be an advantage to W and X.  These contentions are more appropriately dealt with at a final hearing, there being insufficient material presently before the Court to make any meaningful assessment of these contentions.

22. The family consultant stated that it may be in the best interests of the children to attend schools in close proximity to their primary residence.  The Court has regard to the family consultant’s opinion, whilst noting that such evidence remains untested at this stage.

23. The Mother asserts that the travel arrangements for the two youngest children attending (omitted) Public School would be significantly less onerous than if attending their former schools.

24. It will be in the children’s best interests to attend the mother’s proposed schools in the (omitted) area at this interim stage.

Equal Shared Parental Responsibility

1. The parties both maintain and seek an interim parenting Order that there be equal shared parental responsibility in relation to the children.

Equal Time

1. At this interim stage, it will not be in the best interests of the children to live in an equal time arrangement; it will be in the children’s best interests to live primarily with the mother.

2. In this context, the Court has regard to the opinion of the family consultant that given the distance between the parties’ respective residences and the high level of conflict between them, an equal care arrangement is unlikely to be of benefit to the children, whilst noting that this opinion is yet to be tested at a final hearing.

3. The Court refers to its discussion above under the meaningful relationship primary consideration.  Historically, the mother has quite arguably been the primary carer of the children, with the father being significantly involved in their care.

4. The nature and extent of the parties’ communication with each other is insufficient to permit an equal time arrangement to work satisfactorily and in the best interests of the children. Numerous alleged examples of inadequate communication are referred to in the material before the Court.

5. The mother told the family consultant that the father had failed to inform her that he was unwell in October 2017, when the father was hospitalised for bowel obstruction, and was unable to care for the children.  The father told the family consultant that he had arranged for his mother to travel from the (omitted) to care for the children.

6. The mother told the family consultant that the decisions to change the children’s school, and to change the time they spent with the father, were taken unilaterally.  She stated that the father had said that all communication should go through their lawyers, and therefore she did not make him aware of her intention to alter his time with the children until it occurred.

7. The father told the family consultant that the parties primarily communicate via text. He stated that initially after separation both parties sent texts that were abusive, but that this is no longer a problem, and all of their communication relates to the children. He also stated to the family consultant that they communicate through lawyers.

8. The family consultant under the heading “Future directions”, stated that the parties may be assisted to prioritise focus on the children’s needs by independently undertaking a post separation parenting program, such as Keeping Kids in Mind (Catholic Care).

9. The mother appeared to harbour a certain level of distrust of the father, as far as his parenting of the children is concerned, particularly in circumstances (referred to briefly above) where she asserts that the father fails to adequately communicate with her, and where she continues to have concerns as to the father’s use of codeine (the court not overlooking the father’s denials in this context). 

10. The mother asserted that the father does not tell her when he is sick, and the only way the mother has of knowing when the father is ill, is when the children tell her after a visit has occurred. The mother asserted that in the past, the father has not told her when he has taken the codeine medication, including most recently in January 2017.

11. The Court is of the view at this interim stage that the parties will likely be unable to sufficiently cooperate and communicate with each other to enable an equal time shared care arrangement to operate in the best interests of the children.  Further, there is an insufficient level of trust between the parties to enable an equal time arrangement to work in the best interests of the children.

12. Should the children live primarily with the mother and spend time with the father, for four nights each fortnight during school term times, together with holiday time (equally shared with the mother), the potential for conflict between the parties should be minimised (thus avoiding the children being exposed to such conflict), and the parents should be able to communicate sufficiently to enable both parents to adequately care for the children.  Interim Orders made accordingly will be in the best interests of the children.

13. The mother’s interim proposals carry the additional benefit to the children of fewer changeovers and thereby less potential disruption to their day-to-day lives compared to the father’s proposals.

14. The Court takes into account that the current parenting arrangements have been in place since about October 2017 and that the children appear to have settled into these arrangements (apart from W’s issues with public transport to his present school).

15. The Court is of the view at this interim stage that it will be in the best interests of the children that they spend their time with the father in one block period each fortnight. This will avoid disruption, in particular, to the children’s schooling related activities. In this regard the Court notes the mother’s concern that one of the children may leave some homework at the father’s residence and not have it brought to school the next day.

16. Should the children spend time with the father, as discussed above under the meaningful relationship primary consideration, such time will likely constitute substantial and significant time under the Act.

17. Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the child’s best interests to make interim Orders as follows, and the Court makes such Orders:

    (1)The children shall live with the mother, except when spending time with the father in accordance with these Orders.

    (2) The children shall, during school term times, spend time with the father, on a fortnightly basis, from the conclusion of school (or otherwise 3 PM) Thursday until the commencement of school (or otherwise 9 AM) Monday, such time commencing on Thursday, 15 March 2018.

    (3)Changeovers for the above time to be spent by the children with the father shall occur by the father collecting the children from their respective schools on the designated Thursday, and by the father taking the children to their respective schools on the designated Monday.

    (4)The children shall spend time with the father for one half of each of the school holiday periods, as agreed between the parents, and failing agreement, for the first half of the school holidays for years ending in odd numbers, and for the second half of the school holidays for years ending in even numbers.

    (5)Changeovers for the above holiday time to be spent by the children with the father shall occur at (omitted) McDonalds, unless otherwise agreed in writing.

    (6)The parties shall forthwith do all things necessary to ensure that the children attend school as follows:

    (a)     W at (omitted) High School;

    (b)     X at (omitted) High School;

    (c) Y at (omitted) Public School;

    (d)     Z at (omitted) Public School.

    (7) The parties shall have equal shared parental responsibility for the children.

    (8)Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by the Court.

    The Family Report to deal with the following matters:

    (a)Any views expressed by the child and any factors relevant to the weight to be attached to those views, provided that the child shall not be required to express a view in relation to any matter.

    (b) The nature of the child’s relationships with each of the child’s parents and other persons (including any grandparent or other relative of the child);

    (c)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 the parents; or

    (ii)     any other child, or other person (including any grandparent or other relative of the child), with whom the child has/have been living.

    (d)The capacity of each parent, or another person (including any grandparent or other relative of the child), to provide for the child’s needs, including emotional and intellectual needs.

    (e)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 report writer thinks are relevant to opinions expressed in the report.

    (f)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

    The report writer has leave to read any document produced on subpoena to which the parties have been given such leave.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 9 March 2018