Moers & Sands - [2007] FMCAfam 1067

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOERS & SANDS

[2008] FMCAfam 1067

FAMILY LAW – Care arrangements for child aged 5 years – father employed in mining industry interstate on fly in fly out basis – child lives in Adelaide with mother – father seeks to spend each third week and half of school holidays with child – poor and mistrustful relationship between parties – extreme communication difficulties – allegations of family violence – presumption of equal shared parental responsibility – substantial and significant time – practical considerations – best interests.

Family Law Act 1975, ss.4, 60B, 60CC, 60CD, 61DA, 65DAA, 65DAC

Goode & Goode (2006) FLC 93-286
JG & BG 18 Fam LR 255
In the marriage of Patsalou (1994) 18 Fam LR 426
Bright and Bright (1995) FLC 92-570

Applicant:

MR MOERS

Respondent:

MS SANDS

File number:

ADC 2864 of 2007

Judgment of:

Brown FM

Hearing date:

3 December 2007

Date of last submission:

3 December 2007

Delivered at:

Adelaide

Delivered on:

12 December 2007

REPRESENTATION

Counsel for the Applicant:

Ms Hurley

Solicitors for the Applicant:

Clelands Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Di Morosini & Co

ORDERS

The parties have equal shared parental responsibility for the child of their relationship Z born in January 2002 (herein referred to as “the child”).
The child live with the mother.
The father spend time with the child when he (the father) is in Adelaide as follows:
(i)During school terms in every third week from after school on Monday to the commencement of school the following Monday;
(ii)During each short term school holiday from 6:00pm on the first Sunday of such holiday to 6:00pm the following Sunday;
(iii)For a continuous period of three weeks in the Christmas school holiday period of each year commencing at 11:00am on 26 December each year and concluding at 11:00am on 16 January in the following year (the child’s birthday);
(iv)For Christmas 2007 and each odd ending year thereafter from 5:00pm Christmas Eve until 11:00am on Christmas Day;
(v)For Christmas 2008 and each even ending year thereafter from 11:00am on Christmas Day until 11:00am on Boxing Day.;
(vi)For Father’s Day in each year, if Father’s Day does not fall on a weekend the father would otherwise spend with the child, from 9:00am to 6:00pm on Father’s Day provided the father gives the mother notice he will be in Adelaide for Father’s Day;
(vii)For Easter 2008 and each even ending year thereafter from Thursday at 4:00pm until Easter Monday at 6:00pm.
The parties exchange the child between them as required by these orders at the child’s school and the father’s mother Ms M is authorised to act as the father’s agent in regards to collecting and returning the child for any period pursuant to these orders.
In the event the child cannot be exchanged between the parties as required by these orders at his school the father or his agent Ms M is to collect the child from the mother’s home at the beginning of such period and the mother is to collect the child from the father’s home at the conclusion of the period.
The parties exchange all information in writing relevant to the child’s care by means of communication book which is exchanged between them at the beginning and end of each period the child spends with the father.
In the event that Mother’s Day falls on a weekend during which the child is in the father’s care the father shall return the child to the mother at 9:00am on Mother’s Day and the father’s time with the child will conclude for that period at that time only.
The father provide the mother with a copy of his work roster three months in advance and advise her in writing if there is any change to the two weeks on, one week off roster within 48 hours of becoming advised of such a change.
The parties keep each other informed of the residential addresses at which the child will be residing with each of them and provide details of how they may be contacted by the other electronically or by telephone in case of emergency pertaining to the child including any delay in the father’s travel arrangements which is likely to impact on the child.
During the week Z is not spending time with the father the father communicate with the child by telephone each Monday, Wednesday and Friday between the hours of 7:00pm and 7:30pm Australian Central time with the child to telephone the father on each Monday and Friday and the father to telephone the child on each Wednesday on the mother’s mobile phone.
Each of the parties be restrained and an injunction issue restraining each of them from denigrating the other in the presence or hearing of the child or discussing the proceedings with the child.
The mother and father each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as practicable of each treating doctor or like professional attended by the child.
The parties be at liberty to attend or visit the school attended by the child from time to time for events, activities or functions routinely attended by parents, including parent/teacher interviews, sports day, and other school events.
Each party be restrained and an injunction issue restraining each of them from changing the school currently attended by the child without the written consent of the other.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2864 of 2007

MR MOERS

Applicant

And

MS SANDS

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Moers and Ms Sands are the parents of Z, who was born in January 2002. These proceedings concern the appropriate arrangements for Z to spend time with his father.
Mr Moers works for a mining company in PxxxWestern Australia. He is employed on a “fly in fly out” basis, working two weeks in Western Australia and then having one week off, which he usually spends in Adelaide, where he and Ms Sands formerly lived together.
Z lives in Wxxx, a suburb of Adelaide with Ms Sands and has done since the parties separated in difficult circumstances in February of 2007. Ms Sands is currently employed on a part time basis. She has organised her responsibilities at work around her responsibility to care for Z, who has recently started at school.
Mr Moers wishes to spend as much time as possible with Z. He also wishes to retain his well paid position in the mining industry. In these circumstances, he proposes that Z spend each third week with him from Monday after school has finished until Sunday evening, as well as half of each school holiday. In this way he believes Z will be able to have a meaningful relationship with him, which will be in both Z’s short and longer term best interests.
Mr Moers and Ms Sands began to live together in 1997. They built the home together in which Ms Sands and Z currently live. The end of the relationship between them precipitated extreme feelings in them both, particularly Ms Sands.
It also created financial pressures, again more so for Ms Sands than for Mr Moers. She has applied for a departure order in respect of the child support payable by Mr Moers for Z. It seems likely that the home she shares with Z will have to be sold so that Mr Moers may realise his interest in it.
Angry communications have passed between the parties since they separated and there has been at least one unpleasant incident, to which the police were called. Recently a domestic violence restraining order was granted in Ms Sands’ favour.
It is against this difficult background that the court must make decisions regarding the appropriate arrangements for Z to spend time with his father. Regrettably, at this stage, although Mr Moers and Ms Sands are good and loving parents they themselves are unable to make these decisions. Emotions are too raw for that.
I hope that will not always remain the case. I am concerned that the result of these proceedings may act as an impediment to the parties having the sort of cooperative and respectful parenting relationship in future, which is likely to be in Z’s long term best interests.
To her credit, Ms Sands acknowledges that Mr Moers is a capable father who is able to care for Z appropriately.[1] This is not a view she necessarily holds in respect of Ms M, the father’s mother and so Z’s grandmother. The father envisages that Ms M would assist him from time to time in collecting and perhaps returning Z to and from his school, when he is not available, most usually because his flight from Perth to Adelaide will not have landed. Ms Sands does not welcome the involvement of Ms M in this way.
[1] See Ms Sands’ affidavit filed 20 November 2007 at paragraph 22
The parties do not relish the prospect of coming into direct contact with one another at any times Z is exchanged between them. For this reason Mr Moers proses that Z should be exchanged at his school. If his proposal is adopted it, it will need the assistance of his mother from time to time, as he will be travelling from or to Western Australia. Ms Sands proposes that a children’s contact centre be used.
Ms Sands is also opposed to Z spending each third week from Monday to Monday with his father. She believes that the proposal is simply unworkable and likely to be beset by all manner of unexpected changes and so be unsettling for Z himself. She proposes that Z spend from after school on Thursday until the commencement of school the following Monday in each third week with his father. She believes such an arrangement will fit more easily into the father’s travelling schedule and be more stable for Z himself.
In addition, it seems to be Ms Sands’ position that the parties’ current relationship with one another will not sustain the arrangement proposed by Mr Moers and will be unsettling for Z as a result. She points to the difficulties the parties have in communicating with one another, most recently exemplified by what occurred on 5 November 2007.
Both parties propose that they should continue to have equal shared parental responsibility for Z [Family Law Act section 61DA]. Ms Sands also proposes as an alternative arrangement that Z should live with each of his parents on a week about basis. This proposal is predicated on the basis that Mr Moers gives up his job in Western Australia and returns to live in Adelaide. Something he is not prepared to do.
Accordingly there is some tension between the two positions advocated by Ms Sands. But when her case is boiled down, it seems to be her position that she finds Mr Moers’ proposal to be lacking in certainty and stability for Z, particularly whilst he continues to work interstate. She doubts his long term commitment to the tri-weekly Monday to Monday arrangement. She believes this his stability and certainty would be present and a shared care arrangement feasible, if Mr Moers returned to work in Adelaide.
The parties also disagree about arrangements for Z’s care in school holidays and on special occasions, particular his birthday and at Christmas. Mr Moers wishes to be able to spend half of each school holiday period with Z. In terms of the long end of year holiday, he would want to spend three consecutive weeks with Z commencing on Boxing Day each year. This period would conclude around about the time of Z’s birthday.
The mother believes that three weeks is too long a period for Z to be away from her. In addition she points to the fact that the father is only entitled to four weeks holiday each year. Accordingly, she can see no point in Mr Moers being entitled to spend half of each school holiday with Z given that he cannot guarantee that he will be on recreation leave from him employment for these periods. In respect of the long end of the year school holiday, she proposes that

Mr Moers spend two blocks of time with Z divided into periods of two weeks and one week respectively.
Initially Mr Moers proposed that he should spend for 11.00 am on Christmas Day to 11.00 am on Boxing Day with Z. However he is now prepared to leave these arrangements to whatever the court thinks is appropriate, provided he is able to spend a reasonable amount of time with Z at Christmas time and on other special occasions.
Ms Sands’ proposals for special occasions are not particularly well set out.[2] During her submissions she proposed that the period the father should spend with Z at Christmas be from 2.30 pm on Christmas Day until 5.00 pm on Boxing Day. Otherwise she has said nothing specific about special occasions, other than that I gather she would want to spend Z’s birthday with him.
[2] See Ms Sands’ response filed on 27 June 2007 and her case outline filed on 3 December 2007
There are some other issues between the parties. Ms Sands does not wish Z to be taken interstate during any period he is in his father’s care. Mr Moers would like to be able to take Z either interstate or overseas during any holiday period Z is with him. These issues were not developed to any great degree during the hearing of the matter.
Again the issue of telephone communications between Z and his father was not an issue that was developed during the hearing. In his application Mr Moers has indicated that he wishes to be able to telephone Z on two or three occasions each week.
One matter upon which the parties agree is that an injunction should be made and each of them should be restrained from denigrating the other in Z’s presence or hearing and from discussing these proceedings with him.
These proceedings are intended to resolve these various disputes between the parties and finalise as much as possible ongoing arrangements for Z’s care.

The legal principles applicable

Part VII is the part of the Family Law Act which deals with orders relating to children.
The service of Z’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, particularly grandparents [section 60B(2)(b)].
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is not considered to be either to be likely to be in the child’s best interest or reasonably practical.
If the court rejects equal time it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.

The Evidence

The father is the applicant in these proceedings, which he commenced on

31 May 2007
. The orders he seeks are set out in the case outline document prepared by his counsel, Ms Hurley.[3]
[3] Annexed to these reasons for judgment and marked “A”.
The mother responded to the application on 27 June 2007. The orders she seeks are set out in the case outline document prepared by her counsel Mr Bowler.[4] As can be seen, the orders she seeks are not as comprehensive as those sought by the father. She has concentrated on the time Z should spend with his father during term time.
[4] Annexed to these reasons for judgment and marked “B”. The amendment was made by me following Mr Bowler’s indication of a change in his client’s instructions.
The parties each provided evidence and each was cross-examined by the other’s counsel.[5] Ms M was not required for cross-examination.
[5] The father relied on three affidavits of himself filed on 30 May; 14 August; and 14 November 2007; as well as two affidavits of his mother, Ms M filed on 30 May; and 3 December 2007. The mother relied on two affidavits of herself filed on 27 June; and 20 November 2007.
To my mind this considerably lessened the effectiveness of the mother’s criticisms of Ms M, which were not personally put to her. Accordingly, I have no reason to think anything other than that Ms M is a loving and competent grandparent, who has been previously involved in providing care for Z and is therefore qualified to be involved with his care in future.
In her first affidavit Ms M deposes that she has not spoken to Ms Sands since 22 April 2007 but had previously been on good terms with her. She also deposed that she had cared for Z for block periods of time of up to seven days when the parties themselves had been away from Adelaide on work commitments. I believe that the mother’s current antipathy for Ms M is more a result of the acrimonious circumstances surrounding the parties’ separation than any actual failing Ms M has a carer of small children.

Apart from the affidavits already referred to and the additional oral evidence of the parties themselves, the only other piece of evidence was a letter dated 3 December 2007 from Mr Moers’ employer.[6]
[6] Exhibit 1
One of Ms Sands’ criticisms of Mr Moers concerns her perception that Mr Moers’ roster is subject to frequent change and his proposals in respect of Z constitute a “moveable feast”. There is some validity to this criticism. It was only on the day of the hearing that Mr Moers’ proposal crystallised into the current Monday to Monday form.
Mr Moers explained this late notice by reason of the fact that a Monday flight from Nxxx to Perth had only recently commenced and this had result in a change of roster of all the electrical staff at the Nxxx operations.
The letter confirmed that a flight departs Yxxx for Perth at 11.40 am each Monday arriving in Perth at 1.30 pm. The letter also confirmed that Mr Moers is currently employed on a roster of two weeks on one week off, “flying into and out of site on a Monday”. I accept the truth of this letter and the evidence Mr Moers gave in respect of his working arrangements.
The flight from Perth to Adelaide takes around three hours. It is possible for Mr Moers to be home in Adelaide on Monday evenings, after having left Nxxx on the morning of the same day. However it would be impossible for him to be able to collect Z from his school.
In order to be at Nxxx on Monday, for the recommencement of his shift, Mr Moers would have to leave Adelaide on the preceding Sunday. This is where his mother comes in. Mr Moers proposes that she would collect and return Z to and from school on the relevant Mondays. At the present time, Mr Moers is living with his mother. In future, when he is more financially secure, Mr Moers wants to purchase accommodation for himself and Z.
Ordinarily, a court such as this one, should refrain from making adverse comments about a parent, unless it is specifically necessary to do so. It does not help children if the relationships between their parents are inflamed by hurtful but gratuitous findings of fact.
Having said that, I do not doubt for a moment the love and affection each party holds for Z. They are both good and caring parents, who each wish to be as involved as much as possible in providing for Z. However the relationship between the two of them is disastrous and I am concerned that both have allowed their feelings for the other to cloud their judgment in respect of the best outcome for Z. This concern is more pronounced for me so far as the mother is concerned.
It is becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years in a family, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the person the parties to them hold most dear – their child – blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness, so this adjudication can occur.
My impression of Ms Sands is that she is still deeply affected by the emotional consequences of the end of her relationship with Mr Moers and remains very bitterly disposed towards him. In my view, at this stage, she has a propensity to create problems for the sake of creating them but particularly to cause difficulties for Mr Moers.
I have no doubt that she has authored many text and telephone messages which have been directed towards Mr Moers and which are offensive and provocative in tone. I am also concerned that she has attempted to include Z in the dispute between the parties and engage him on her side of it.
I do not doubt that Mr Moers is not particularly well disposed towards Ms Sands. However his feelings for her are more resolved. He has no interest in any on-going vendetta. He appeared resigned to the current state of affairs and seemed to have no desire to escalate difficulties. I accept his evidence that his only current wish is to be able to formalise arrangements whereby he spends time with Z. Of the two parties, I consider him likely to be the more objectively reliable.
Having made these observations about the parties, I should point out that it is not my role to attribute fault for the end of the relationship between the parties and the behaviour of the parties since. Rather I must determine issue to do with Z, from the perspective of his best interests. From the mother’s point of view the separation was sudden and brought severe financial consequences. In such circumstances, I can well understand why she has struggled to come to terms with it.
At the heart of the difficulties between the parties are issues to do with the separation of their financial affairs and child support. Mr Moers enjoys a comfortable income of around $110,000.00 per annum. He is able to salary sacrifice for a car. Ms Sands’ annual salary is around $14,500.00. It seems to be the position that Ms Sands will be unable to afford the mortgage on the parties’ former family home and it will have to be sold. Currently they are each paying half of the mortgage on the property.
Z is currently attending S School, a private Catholic school. The fees are around $2,800.00 per annum. How Z came to be attending the school is a matter of controversy between the parties. Mr Moers alleges that Ms Sands enrolled the child without prior reference to him, which left him feeling aggrieved at the lack of consultation.
It is not necessary to resolve this issue in these proceedings other than to point out that it is agreed between the parties that Z should continue at the school and Mr Moers is apparently willing to contribute to the necessary fees. However the issue has added to the tension between the parties and was the background to an application made by Ms Sands to depart from the current assessment of child support.
Ms Sands sought to increase the amount of child support payable by Mr Moers for Z from $651.00 to $904.00 per fortnight. In support of his opposition to the increase Mr Moers pointed to the fact that he continued to pay half of the mortgage and other outgoings in respect of the parties’ former family home and had costs associated with coming to South Australia to spend time with Z. I understand the issue has recently been resolved in Mr Moers’ favour. Again this has done little to reduce tension between the parties, particularly so far as Ms Sands is concerned.

(a) Chronology

The father was born in Adelaide in March 1971. The mother was born in Sydney on in July 1972. The mother has two children from an earlier relationship J and K, who are 15 and 13 years old respectively. I accept

Mr Moers feels very close to both children as he shared the same household with them for many years.
The parties began to live together at Easter of 1997. They finally separated 5 February 2007, which the mother describes as having occurred “out of the blue as I was not aware the relationship was in jeopardy”. [7] The father moved out of the parties’ former family home about a fortnight later. He has since been living with his mother in Mxxx. The parties’ separation undoubtedly ushered in a period of financial insecurity and austerity for the mother. She was compelled to apply for social security.
[7] See mother’s affidavit filed 20 November 2007 and annexure DNS 1 thereto at paragraph 8.1
The father retained the family’s motor vehicle following the separation.

Ms Sands was left without transport until her parents bought her another vehicle. Again this was a source of recrimination for her.
Another bone of contention between the parties concerns the cutting off of the electricity to the former family home at Wxxx in April. Mr Moers claims that he wanted to obtain a final reading on the electricity so that the account could be changed to Ms Sands’ sole name. In any event the electricity was disconnected.
Ms Sands attributes this to malice on Mr Moers’ part. I do not think that he would want to detrimentally affect Z in any way. Accordingly I think the electricity was most likely disconnected as a result of mistake and miscommunication rather than anything sinister on Mr Moers’ part.
Following the disconnection of the electricity, Z apparently left a message on his father’s telephone remonstrating about the situation. If this came about as a result of the mother’s intervention and her criticisms of the father to Z, I regard this as reprehensible behaviour on her part.
During the early years of the parties’ relationship, Mr Moers worked as a refrigeration mechanic in Adelaide. In August 2002, he commenced employment with the mining company in Western Australia and has remained in their employment ever since. Accordingly the fly in fly out basis of his employment cannot be regarded as a new phenomenon for the parties. Originally he was employed on the basis of three weeks on one week off. In December of 2005, the roster was changed to two weeks on one week off.
Ms Sands returned to part time work when Z was not yet one year of age. Since that time he has been placed in child care regularly. I also accept that Ms M assisted with his care regularly, when the parties were at work. The parties are in dispute about the exact level of Mr Moers’ involvement in caring for Z in his earliest years.
As is commonly the case in matters such as these, the mother says she was Z’s primary carer. Whilst on the other hand, the father says he was extensively involved in the day to day nuts and bolts parenting, particularly on his weeks off. It is not necessary to resolve this issue in the light of the mother’s concession that Z and his father enjoy a close relationship.
Since the parties separated, communication between them has been fraught with difficulties. I have outlined already some of the particular points of friction. I have no doubt that both has said and done things in the heat of the moment which the other has considered provocative. In spite of these difficult circumstances, Mr Moers has been able to maintain his relationship with Z and Ms Sands acknowledges that he is a good father.

(b) Family Violence

Ms Sands’ concerns about what she alleges has been Mr Moers’ violent and unacceptable behaviour towards her is mainly set out in the affidavit she has sworn in support of her application for a domestic violence restraining order.
In her most recent affidavit she also deposes that the father is to be charged with assaulting her and a restraining order will be in place against him “in the very near future”. [8] The father’s position is that he has not received any documentation from the police and has not been formally interviewed by them.
[8] See mother affidavit filed 20 November 2007 at paragraph 13
In the affidavit to the police, Ms Sands reiterates her complaints about

Mr Moers retaining the motor vehicle and the circumstances surrounding the cutting off of the electricity at her home. She also complains of threatening text messages and the fact that the father has parked across the road from her home.
More recently, on 11 August, she complains that Mr Moers and a friend entered a shed at her home and removed some tools from it. I note in regards to this incident that Mr Moers was in fact entering a property which he owned. The action might be perceived as insensitive or provocative but it was not illegal.
The most serious incident of which the mother complains allegedly occurred on 5 November. This is the incident in respect of which she believes that the father will be charged with assaulting her. The mother deposes that she had arranged for some of the father’s possessions to be packed into boxes for his collection. When the father arrived at her home, she alleges he forced his way past her, shoving her chest with both his hands.
The father’s position is that the mother refused him access to the premises and he merely walked past her into the home, presumably to gain his possessions. He denies that he caused the mother any injury whatsoever or came into direct physical contact with her.
I have not been provided with any of the offensive text messages which the mother claims have been sent to her by the father. I have however been provided with a number of messages which the father says the mother has sent to him. The mother denied sending some of them. I did not find her denials convincing. The tone of these various messages cannot be described as conciliatory.
I suspect that both parties have probably acted intemperately towards each other in the heat of the moment. Accordingly neither party can be considered totally blameless. In such circumstances, I think it unlikely that the father is the clear aggressor towards the mother. She struck me as being more than capable of acting provocatively towards the father.
The parties should bear in mind that their currently dysfunctional relationship with one another has the potential to do untold harm to Z. He is not the instigator of the dispute between his parents. The ongoing dispute has the potential to test the love and loyalty he holds for both his parents. Currently he does not have sufficient cognitive maturity to understand why his parents are in such violent conflict and to make sense of their behaviour. The on-going conflict may leave him a troubled and disturbed child, with consequences for his long term development.

Determining Z’s best interests – section 60CC

a) The primary considerations

The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the child concerned from harm as a result of exposure to abuse and family violence; and the benefits of the child having a meaningful relationship with both parents.
The mother points to the first consideration being significant in this case and the father points to the second consideration as being the more significant. He contend that he can only have a meaningful relationship with Z, in the beneficial sense envisaged by the legislation, if he spends as much time as possible with Z, when he is in Adelaide.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings.
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (2006) FLC 93-286 at 80,901].
In terms of family violence and abuse, the emphasis in the legislation is also prospective, concerned with the making of orders which are protective of the child concerned. Accordingly, an allegation of abuse or family violence, of itself, will not necessarily engage the application of section 61DA nor indeed negate the presumption created by section 61DA(1).
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [In the marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arise within the private confines of the family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate and arise from a clear power imbalance between the parties concerned [JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child arising from the possibility of further exposure to family violence rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed of provocation or incitement.
Finally the definition of family violence has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings such as these to exaggerate unfortunate incidents which have previously occurred.
As I have already indicated, it is my view that both parties have behaved inappropriately towards one another in the difficult circumstances surrounding the end of the relationship between them. Both have said and done thing which I hope they have later had cause to regret. In my view this behaviour has been situational and reactive. I do not think that either party is an inherently violent person. Rather both have reacted at times to the emotion of the situation surrounding them.
As such, I do not think the principle responsibility of the court should be to consider strategies to protect Z from family violence. Rather it should be on the best means of ensuring that he has the optimal or most meaningful relationship with both his parents. Accordingly the court must consider how Z should be able to interact with his father in the widest possible number of contexts, given Mr Moers’ present work schedule, which is unlikely to change in the foreseeable future.
Ms Sands is piqued that she has chosen to restrict her work hours in order to focus on Z’s best interest but Mr Moers has not. This decision, given the parties’ separation, means financial austerity for her. After having thought about giving up his work in Western Australia, Mr Moers has decided to continue on with it. I can understand why he would make this choice, which means financial security for him and indirectly provides some measure of security for Z and his mother. But I can also understand Ms Sands’ resentment.

However the focus of this case is Z’s best interests. I have no authority to compel Mr Moers to give up his job or direct that he return to live predominantly in Adelaide. We live in an age where the work force is become increasingly deregulated and flexible. The old paradigm of one parent being a family’s breadwinner and working conventional Monday to Friday hours is becoming less common. Skilled workers now look for work far afield and their potential employers require them to work longer hours in exchange for generous remuneration. It is the mantra of this age that work and family commitments are out of kilter.
At the same time as the work force is changing, relationship breakdown is becoming more common. Courts, in shaping meaningful parental relationships for children, against the background of parental separation, should endeavour to fit child/parent time into the context of a parent’s work responsibilities. Children should not be penalised necessarily for the work schedules their parents choose to work, very often as a result of a desire for the financial betterment of their children.
In addition, it seems to me to be clear that it is intended from the legislation that meaning in parental relations should come not only from the extent of time a parent spends with a child but also its context. This seems to be the clear rationale for the presumption of equal shared parental responsibility and the definition of substantial and significant time in section 65DAA.
Accordingly, it is my view that in order for Z to have the most meaningful relationship with both his parents, it would be in his best interests to be able to spend as much time as possible with his father when he is at home in Adelaide. Such an arrangement will enable Z to have a sense that his father is engaged in all aspects of his life, both his school life and at weekends. From this engagement will come meaning for Z. This consideration militates in favour of the court giving favour to Mr Moers’ preferred outcome.

b) Additional considerations

Z is too young to be able to express any concluded view regarding his preferred outcome in this case [section 60CC(3)(a)].
I am satisfied that Z has a close and loving relationship with both his parents. I am also satisfied that he has a very significant relationship with his paternal grandmother, who played a large role in caring for him, in his early years, when both his parents were engaged in full time work. As such I do not see Mr Moers’ reliance on her as an impediment to the implementation of the regime he advocates [section 60CC(3)(b)].
I consider that Ms Sands can go further in her encouragement of Z having a close and continuing relationship with both his father and paternal grandmother [section 60CC(3)(c)]. At this stage I believe she has put her own feelings of animosity before Z’s best interests. I do not think it can be said that Mr Moers has ever failed to spend time with Z or has been a disinterested parent [section 60CC(4)]. Certainly I do not think he can be criticised in respect of the level of financial support he has provided for Z which is in accordance with the current Child Support Agency determination.
The mother complains that the father’s proposals have the potential to be unsettling for Z [section 60CC(3)(d)]. I do not agree. The reality of Z’s life to date is that his father has always worked away in Western Australia and has returned in blocks of one week during which he has been significantly involved in Z’s life.
Ms Sands complains that the father’s proposals are impracticable and as such the court should adopt a cautious approach in regards to adopting them [section 60CC(3)(e)]. Again I do not agree.
Mr Moers has been travelling between Adelaide and Perth for a considerable period of time. He has shown that he has the financial capacity and emotional commitment to travel between the two locations. I accept the letter he has produced from his employer which indicates that he will be working on a Monday to Monday shift and confirms there are daily flights between Nxxx and Perth and Perth and Adelaide. The distance between Nxxx and Adelaide is great but this of itself does not make Mr Moers’ proposal impracticable.
I accept that inevitably some of Mr Moers’ flights will be delayed but in my view this will be the exception rather than the rule. Nor do I see the necessary involvement of Ms M in the father’s proposals as being an obvious impediment to them, particularly given my finding of the significant relationship she shares with Z.
In Australia it is common for both a child’s parents to be part of the full time paid workforce. Such parents are invariably reliant on a variety of sources to assist them with the care of their children, whilst they are engaged in employment. These sources include childcare; babysitters; friends; and very commonly members of their extended families, particularly grandparents. Indeed this is what occurred in the early years of Z’s life, when both his parents were working. At that stage, both the father and mother were content to allow Ms M to step into the breach.
I see no logical reason why things should be different now the parties have separated. I can see no principle to be derived from the Family Law Act which indicates that a parent should always be promoted to provide care to a child in preference to other family members. Indeed such a principle may be inimicable to the principles underlaying Part VII [section 60B(2)(b) and Bright and Bright (1995) FLC 92-570 at 81,658].
I have no reason to doubt the general parental capacity of either party. Apart form some mutual difficulty in shielding Z from their high level of separation conflict, both seem to be responsible parents [section 60CC(3)(f)&(i)]. I do however have considerable concerns that at this stage the mother has significant difficulty in hiding from Z her bitterness arising from the consequences of her separation from Mr Moers. This is not good parenting.
I have not been provided with a copy of the family violence order for which Ms Sands has apparently applied [section 60CC(3)(k)]. The order was not made following a contested hearing. Mr Moers did not consent to it. It is not a final order. In my view the existence or otherwise of the order cannot be determinative in the case.

Conclusions

The parties both advocate that they should have equal shared parental responsibility in respect of Z. Notwithstanding this consensus, I would have had little difficult in reaching the conclusion that the presumption created by section 61DA should be applied in this case.
Given Mr Moers’ work schedule it is not possible for Z to live with each of his parents for equal periods of time. Accordingly the court is then required to consider Z living with his father for substantial and significant periods of time. Substantial and significant time is defined as “days that fall on weekends and holidays; days that do not fall on weekends and holidays; and time that allows the child’s parents to be involved in the child’s routine” [section 65DAA(3)].
The father’s Monday to Monday proposal, when coupled with his proposal that Z spend half of each school holiday period with him clearly meets this definition.
In my view it is likely to be both in Z’s best interests and to be reasonably practicable for him to live with his father for such substantial and significant periods of time. I reach this view notwithstanding the parties’ poor relationship with one another and their current communication difficulties.
These problems would remain even in the event of the adoption of the mother’s Thursday to Monday proposal. In addition it is clear that the father is committed to making his proposal work regardless of the current level of difficulties. For reasons already provided, I do not think the fact that

Mr Moers works in Western Australia for two weeks out of every three should act as a bar to the significant and substantial time arrangement on practical grounds, given the frequency and general reliability of air travel between Nxxx and Perth and onwards to Adelaide.
As I have already pointed out, one of the ironies of this case is that the mother herself proposes a shared care arrangement for Z, provided the father moves back to live in Adelaide permanently. It seems odd that she believes that she could work with such an arrangement if Mr Moers lives in Adelaide but not with the proposal based on him remaining working in Western Australia. This suggests to me some level of artifice.
Both parties suggest the court adopt mechanism which ensure they never come face to face when Z moves between their respective cares – the father proposes Z’s school be utilised; the mother advocates a children’s contact centre or a police station. In addition, in the past neither party has always been able to utilise electronic means of communication with the other without rancour. These are not happy indicators for any kind of shared parenting regime.
In my estimation, the mother has been the major driver of the hostility between the parties. Whether this has occurred consciously or unconsciously, I am unsure. Certainly at this stage, the mother has no commitment to having an empathetic or highly mutually inclusive parenting regime with the father. I suspect that Mr Moers would like to have such a relationship but believes that it will never come about and the best he can hope for in the short to medium term is an uneasy ceasefire with the mother. Should Z and the father be penalised for the mother’s behaviour and the optimal parenting regime advocated by the applicable legislation be deferred so far as Z is concerned?
How concerns of this type are to be accommodated within the overall ethos of the Shared Parenting Legislation is unclear. I am concerned that, as a result of the emotional topography which often prevails in children’s cases, a party who is vehemently opposed to either a shared care regime or one whereby the child involved spend substantial time with both his or her parents, for reasons perhaps relating to his or her own emotional needs or for some other ulterior motive, may be encouraged to act in a way which is contrary to the principles and objects of the amending legislation.
As a result of such factors he or she may be prone to perpetuate parental conflict; may magnify the practical difficulties which exist; and intensify the level of disputation about various parenting issues; in order to defeat the application of the mechanisms provided by s.65DAA.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[9] Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents.
[9] See note 1 to section 65DAA(5)
However, regardless of these considerations, Z will still have to accommodate, in some form or other, the transition between two households which are suspicious of and hostile towards one another, in circumstances were there is no easy or obvious means of communication. A communication book may provide some solution but given what has happened with text messages in the past cannot be regarded as an automatic panacea.
I am required to make some sort of assessment of the impact such a transition is likely to have on Z himself. The issue worries me. However regardless of how Z’s time is allocated in every third week and during school holidays, the tension between his parents is likely to remain, certainly until financial issues are more resolved and time has had a chance to heal wounds. At this stage, there is no clear evidence that Z is suffering emotionally or psychologically as result of the extreme tensions between his parents.
To my mind the best means to ensure that Z remains quarantined from the more corrosive aspects of his parents’ relationship with one another is to ensure that they come into contact with one another as little as possible in his presence and communications between them are kept to brief business-like ones only rather than reducing the amount of time Z spends with his father.
For this reason I propose inaugurating a communication book between the parties. Z’s school appears to be the most logical place for him to be exchanged between the parties, given the obvious role Ms M can play in this regard, otherwise he should be exchanged at the parties’ home. Given these matters, overall I can see no practical impediments to the substantial and significant time regime proposed by Mr Moers.
I also propose to make orders that divide the school holidays equally between the parties. I am aware that the father is entitled to only four weeks annual leave each year. This is the annual leave allocated to most employees in Australia. In addition, it is also very often the case that school holidays are divided equally between parents when orders for substantial and significant time are made.
The mother has made no formal proposals in respect of special occasions and holidays. In those circumstances I propose to make essentially the orders the father proposes in this regard. At this point, given the absence of any concrete proposals from either of the parties regarding overseas travel, I do not propose to make any orders in this regard.
The parties seem to be in agreement that Z should remain at

S School. The mother has raised no issues in regards to the times the father wishes to be able to telephone Z. It is also in my view appropriate that the father be able to attend Z’s school from time to time to discuss issues to do with Z’s education with his teachers.
For all these reasons, the orders of the court will be at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty three (133) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 12 December 2007

“Annexure A”

A.ORDERS SOUGHT

That both parties have equal parental responsibility for the child of the relationship Z born in January 2002 (“Z”).

That Z do live with the respondent mother.

That the applicant father do spend time with Z when he is in Adelaide every three weeks (or four weeks in the event of the applicant father having to work additional time in Western Australia) as follows:

3.1During school terms from after school Monday to the commencement of school the following Monday;
3.2During short school term holidays from the first Sunday of these holidays at 6:00pm until the following Sunday at 6.00pm;

3.3For a continuous three (3) week period in the Christmas school holidays commencing on the first Friday in January each year;
3.4For Christmas 2008 and each alternate year thereafter, from 11.00am Christmas Day until 11.00am Boxing Day;
3.5For Christmas 2009 and each alternate year thereafter, from 5.00pm Christmas Eve until 11.00am Christmas Day;
3.6For Father’s Day from 9.00am to 6.00pm if it does not fall on a weekend the applicant father is to spend time with Z;
3.7For Z’s birthday:

3.7.1If the applicant father is in Adelaide then the parties share that day; and
3.7.2If the applicant father is not in Adelaide, then the respondent father can telephone Z for 30 minutes between 6.30pm and 7.30pm;

3.8For Easter 2008 and each alternate year thereafter, from Thursday at 4.00pm to Monday at 6.00pm;
3.9At such further and other times as agreed between the parties.

That in the event of any change to the applicant father working two weeks on and one week off, the applicant father give the respondent mother seven (7) days’ notice of when he will be in Adelaide for the purpose of spending time with Z.

That during the weeks Z is not spending time with the applicant father, Z do communicate with the applicant father by telephone each Monday, Wednesday and Friday from between 7.00pm and 7.30pm.with Z telephoning the applicant father each Monday and Friday and the applicant father telephoning Z on each Wednesday on the respondent mother’s mobile phone.

That both parties be at liberty to go on holidays with Z outside of the State of South Australia and the Commonwealth of Australia provided that the prior written consent of the other party or Order of the Court is obtained;

That each of the parties be restrained and an injunction be granted restraining each party from discussing any proceedings or denigrating the other party with, or to or in front of Z;

That the applicant father shall have the same access to Z’s school, its teachers and after school care employees as the respondent mother and be at liberty to obtain all and any information regarding Z’s progress including but not limited to school reports and newsletters and that the applicant father be at liberty to attend Z’s school for the purpose of speaking to Z’s teachers, attending parent/teacher interview, sports days and other school events;

That the applicant father do communicate with Z by the applicant father telephoning Z two (2) times per week on Monday and Wednesday evenings between the hours of 6.30pm and 6.45pm and for Z to be able to speak alone for up to twenty (20) minutes with the applicant father on each occasion;

That Z do remain at S School unless both parties otherwise consent in writing;

That Z do remain residing within the Adelaide Metropolitan area unless both parties consent otherwise in writing;

That the applicant father or his nominee collect Z either from school or if the child is not at school from the respondent mother’s residence and the respondent mother collect Z from the applicant father’s residence, if the child is not at school.

That the parties do forthwith sign all such necessary documents so as to enable the applicant father to apply for an Australian passport for Z.

That the applicant father deliver Z’s Australian passport to the Registrar of the Adelaide Registry of the Federal Magistrates Court to be held by the said Registrar and only to be released upon either:

14.1With the prior written consent of both parties and/or their legal representatives; or
14.2By order of this Court.

That the respondent mother pay the applicant father’s costs of and incidental to this application.

Such further or other orders that this Honourable Court sees fit.

“Annexure B”

Moers & Sands
ADC 2864 of 2007

ORDERS SOUGHT BY THE MOTHER

That the parties do have the equal shared parenting responsibility for the infant child Z born on the 16^th day of January 2002.

That the said child do live with the parties on a week about basis with handovers during school terms to take place at school on Friday in each week and during school holidays at H Police Station.

In the alternative that the said child do spend time with the father when the father is in Adelaide every third week as follows:
(a)from after school on ~~Friday~~ Thursday until the commencement of school on Monday every third week;
(b)at such further and other times as agreed between the parties;
(c)that the father give the mother seven (7) days notice of when he will be in Adelaide for one week;
(d)that the father be restrained and an injunction be granted restraining him from removing the said child from the State of South Australia without the written consent of the mother or order of this Honourable Court;
(e)that the father be restrained and an injunction be granted restraining him or any member of his family from discussing these proceedings or denigrating the mother to or in the presence of the said child.