MOHER & GIKAS

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHER & GIKAS

[2015] FCCA 17

Catchwords:
FAMILY LAW – Parenting – high conflict.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MS MOHER

Respondent:

MR GIKAS

File Number:

SYC 5388 of 2009

Judgment of:

Judge Altobelli

Hearing dates:

6-7 December 2012, 11 December 2014

Date of Last Submission:

11 December 2014

Delivered at:

Sydney

Delivered on:

6 March 2015

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

That all previous parenting Orders be discharged.
That the parents have equal shared parental responsibility for the Child [X] (“the Child”), born [omitted] 2001.
That the Child live with the Mother.
That the Father and Mother have sole responsibility for making decisions about the day to day care, welfare and development of the Child during periods when the Child is living with them.
That the Child spend time with the Father as follows:
(a)During school terms, in week one: Each alternate Friday from after school until before school on Monday;
(b)During school terms in week two: From after school on the Wednesday following the Father’s contact weekend to before school on Thursday morning.
(c)For one half of the New South Wales mid-year school holidays, with such time to be agreed in writing between the parties, and in the absence of an agreement for the first half of the holidays which commence in an odd numbered year and the second half of the holidays which commence in an even numbered year.
(d)In the December/January school holidays which commence in an odd numbered year for two weeks commencing from 6:00pm on the last day of school until 6:00pm two weeks later, and in each subsequent odd numbered year thereafter.
(e)In the December/January school holidays which commence in an even numbered year for two weeks commencing from 5:00pm two weeks before the conclusion of the school holiday period and ending on 5:00pm on the Friday before the commencement of the next school term, and in each subsequent even numbered year thereafter.
(f)The Child’s time with the Father in accordance with Order 4(d) is suspended from 4:00pm on Christmas Day until 4:00pm Boxing Day, and from 4:00pm on New Years Day until 4:00pm on 2 January, with the intent that the Child is to spend time with the Mother on Christmas Day and New Years Day during this period.
(g)From 4:00pm on Christmas Day until 4:00pm on Boxing Day and from 4:00pm on New Years Day until 4:00pm on 2 January for each subsequent even numbered year thereafter.
(h)For the purpose of these Orders, a school holiday period commences at the end of the last day of the school term and concludes at the start of the first day of the next school term, in each case as determined by the school the Child is attending. Any pupil free day, or equivalent, as determined by the school, is deemed to be part of the school holidays. The duration of the school holiday period is calculated in the manner set out above, i.e. from the last day of the school term, to the first day of the next term.
(i)In the event the Child is not already spending time with the Father on Father’s Day, then Father’s Day from 9:00am to 5:00pm.
(j)In the event the Child is spending time with the Father during the Mother’s Day weekend, the Child will be returned to the Mother at 5:00pm on the night prior to Mother’s Day.
(k)On the Child’s birthday in each odd numbered year and subsequent thereafter from 4:00pm to 7:00pm.
(l)On Greek Easter Day from 9:00am to 6:00pm.
(m)The Child’s time with the Father is suspended on Easter Sunday from 9:00am until 6:00pm if the Child is otherwise spending time with the Father during that period.
That each of the parents is hereby restrained from discussing these proceedings or denigrating the other party in the presence or hearing of the Child.
Each parent shall immediately notify or cause to be notified the other parent in the event of any sickness, injury or serious misadventure of the Child.
That each parent shall notify the other parent of any significant developmental milestones of the Child and each parent shall forward to the other parent any significant documentation relating to the Child.
For the purpose of these Orders, changeover is to be effected as follows:
(a)The parent with whom the Child is to spend time or live with immediately following the end of school is responsible for collecting the Child from the said school.
(b)The parent with whom the Child has been living at the time is responsible for delivering the Child to school.
(c)Where changeover cannot be effected at school, it is to be effected at the home of the parent with whom the Child had been living or spending time immediately before the changeover.
In the event the Child has school functions, extra curricular activities such as ballet, swimming lessons and speech therapy and parties to attend that parent who has the care of the Child shall ensure her attendance.
Either parent can attend the Child’s extra curricular activities regardless of whether the Child is in their care.
In the event the Child has a medical appointment, the parent in whose care the Child is, will ensure prompt attendance at that appointment.
That, without admissions, the Father shall not attend upon the Child’s school during periods of time that the Child is living with her Mother pursuant to orders of this Court except:
(a)unless otherwise agreed in writing between the parties;
(b)in an emergency which requires the collection of the Child from school by a parent;
(c)the attendance at school by the Father for the purposes of an appointment with the Child’s teachers or the school principal;
(d)the attendance at school by the Father for the purposes of attending school activities and functions that parents are invited to attend.
IT IS NOTED that publication of this judgment under the pseudonym Moher & Gikas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5388 of 2009

MS MOHER

Applicant

And

MR GIKAS

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about [X], born [omitted] 2001, now 13 years old. When the proceedings commenced her mother was the Applicant, and her father the Respondent. By the time the proceedings came on for Final Hearing, the issues in relation to [X] had narrowed significantly and, for all practical purposes, her father became the Applicant and the Mother the Respondent. [X]’s parents are unable to reach agreement about how much time she should spend with her father, and various other details relating to the parenting orders relating to [X].

Background

It is an unfortunate fact that [X]’s parents have been litigating about her for most of her life. The first Order relating to [X] was made in the Local Court at [omitted] on 10 June 2005. An Order was made for her to live with her mother, and spend time with her father. The next significant Order relating to [X] was made by Judicial Registrar Loughnan (as he then was) in the Family Court of Australia at Sydney on 6 June 2006. The Consent Order provided for the parents to have joint parental responsibility, for [X] to live with her mother, and spend time with her father. For relevant purposes, once [X] commenced school in 2007 she was to spend time with her father each alternate weekend from Friday after school until 6:30 pm on Sunday, as well as each Wednesday night, Monday evening, for half of school holidays, and on special days.
The matter first came before me in August 2011. A number of procedural Orders were made. The matter was set down for Final Hearing on 6 and 7 December 2012. After hearing evidence of the Family Consultant, Ms R, Orders were made by consent on 7 December, varying the prior parenting Orders. The Orders made on this occasion are reproduced in the first schedule to these reasons. The Father’s alternate weekend time was extended so that it concluded before school on Monday. The matter was adjourned on a part heard basis to 3 and 4 June 2013 for Final Hearing with priority. In June the matter was adjourned once again as a result of the circumstances of the parents. In 2014 the matter was delayed in terms of listing for a number of reasons including my reassignment to the Wollongong registry of the Court, and the filing by the Mother of a Notice of Discontinuance, thus raising the prospect that the matter might proceed on an undefended basis. What became apparent to me, however, on 1 July 2014 is that the filing by the Mother of her Notice of Discontinuance was not intended by her to suggest that she would not participate in the proceedings, albeit on a self-represented basis. In any event on 1 July 2014, I ordered an updated Family Report, particularly to take into account [X]’s views. The matter finally came before me for Final Hearing on 11 December 2014. On this occasion both parents were unrepresented, Ms R gave evidence, both parents gave evidence, and an opportunity to cross-examine was given in each case.
At the Final Hearing, the Mother indicated to me that, whilst seeking to discontinue her application, she sought no further changes to the current amended Orders that had been agreed to by both parents by way of Order made 3 June 2013. The effect of this Order, bearing in mind that it varies pre-existing Orders, is that [X] would spend time with her father for four nights each fortnight.
The Father indicated that the Orders he sought continued to be those set out in his Amended Response filed 9 August 2013. In practical terms, the most important difference between the proposals is that he seeks an extra night so that [X] would be with him five nights each fortnight. Those Orders are contained in the second schedule to these reasons.
The Father emphasised, however, and the Mother agreed, that attempts should be made to make all of the Orders as clear as possible so that there was the least possible opportunity for them to disagree about what the Order means. Having raised this as an issue, however, neither parent made any submissions about how the Court should achieve their desired intention though, implicitly, the Father’s case was that the making of the Orders he proposed would achieve this object.
The issue before the Court is, in many respects, of narrow compass. Nonetheless, it is a very important issue for the parents, and for [X]. The main question the Court will need to adjudicate on is whether [X] should spend time with her father for four nights each fortnight as her mother proposes, or five nights each fortnight as her father proposes. Both parents feel very strongly about this issue.
Most of the background facts are relatively uncontentious and the following overview is drawn from the Family Reports. The Father is 52 years old and the Mother is 49. The Father described himself as a [occupation omitted], and the Mother described herself as an unemployed [omitted]. The parents married in 1997, separated in 2005 and divorced in 2009. The mother has re-partnered, married, and has children to a new husband. The father is of Greek background, the mother of Italian background. They live in areas geographically proximate to each other so that, from that perspective, there are no issues of practical difficulty and expense in facilitating [X]’s time.
The parents are unable to communicate with each other. They seem to have sufficient insight to recognise this. They do not share the same view about why this is the case, whether either or both of them are responsible for it, and whether, and if so how they should do something about the problem.
Despite their chronic inability to communicate, it is clear to the Court that they are intelligent, articulate and caring parents. Even though they represented themselves in the later stage of the proceedings they did so capably, were courteous to each other in the Court room and both seemed very genuine about their beliefs.

The evidence

In the Father’s case he relied on the following Affidavits:
·Affidavit of Mr Gikas, sworn/affirmed 31 July 2011
·Affidavit of Mr Gikas, sworn 22 November 2012;
·Affidavit of Mr Gikas, sworn 8 August 2013
·Affidavit of Mr Gikas, sworn/affirmed 25 June 2014;
·Affidavit of Mr Gikas, sworn/affirmed 4 December 2014;
The Mother relied on the following Affidavits:
·Affidavit of Ms Moher, sworn 16 November 2012;
·Affidavit of Ms Moher, sworn/affirmed 4 June 2014;
·Affidavit of Mr L, sworn 16 November 2012; and
·Affidavit of Ms P, sworn 28 November 2012.
The parents both cross examined each other, but for short periods of time.
There were two Family Reports prepared by Family Consultant R, dated 28 March 2012 and 30 September 2014. In a case like this where the issues are quite narrow, where the parents were representing themselves, and challenged very little of the other’s evidence in cross-examination, the Family Report takes on greater significance.
There are no issues of credit in this case. Both parents were genuine. They have different perceptions about past events, about [X]’s needs, and about the future. There is no question, however, that they both genuinely believe the matters of fact, and submissions, they put to the Court.

The applicable law

In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)    the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)     any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)    the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.

The Family Reports

In Ms R’s first Family Report she made the following recommendations:
50.It is recommended that parental responsibility for [X] be equally shared between the parents.
51.It is recommended that [X] live with her mother.
52. It is recommended that [X] spend substantial and significant time with her father, perhaps an increased amount of time such as Thursday to Monday in week one and Thursday to Friday in week two.
53.It is recommended that [X] spend half of school holidays with her father and that the orders specify exactly when this time is to occur, from start to finish.
54.It is recommended that [X] spend time on special occasions with her father, including Christmas and Easter. In years when Eastern and Western Easter do not coincide [X] should spend Eastern Easter with her father and Western Easter with her mother. In years when Easter and Western Easter coincide [X] should spend half of the Sunday with her father and half of the Sunday with her mother. Again, it is recommended that the orders specify exactly when this time is to occur, from start to finish.
55.It is recommended that the parents develop consent orders, or otherwise apply for orders, regarding which high school [X] shall attend in 2014.
It will be apparent that the Family Consultant recommended to the parties that [X] spends five nights out of fourteen with her father. At the time of the Report, [X] had been spending three nights out of fourteen with her father and, it will be remembered, subsequent to the Family Report the parents entered into Consent Orders on 3 June 2013 for four nights out of fourteen. As will be seen below, the recommendations contained in the second Family Report are different. That will be discussed in more detail in due course.
In the first Family Report the Family Consultant made a number of observations which, in the Court’s estimation, and having regard to all of the evidence, continued to be the case. For example she observed that the Father “presented as hardly done-by, feeling that he has repeatedly been wronged by” the Mother (paragraph 8). The Father reported “feeling as if [X] is not his daughter as a result of Ms Moher’s attitude and behaviour over the years” (paragraph 10). At that time of the Report interviews he was seeking an equal time arrangement. The Family Consultant records at paragraph 11 of the report:
Mr Gikas is proposing that [X] live in an equal time arrangement. He is aware that equal time arrangements are not recommended when there is poor communication and conflict between parents, but he considers the state of his co-parenting relationship to be completely due to Ms Moher’s behaviour and “lies” and not at all due to his behaviour. When advised that Ms Moher alleges that he does not respond to her emails in order to negotiate on decision making, he stated that that is “rubbish”, and that Ms Moher’s emails are written with authority, not as an invitation for discussion. Mr Gikas does not think it appropriate to discount equal time, which he thinks could work effectively, if Ms Moher were to change her behaviour. He feels that, if each parent were responsible for [X] for an entire week, many of the issues currently causing conflict, such as homework, would not come up.
Whilst the Father abandoned the application for equal time, the attitude reflected in the above paragraph persisted, that is, that it was the Mother who needed to change her behaviour.
The Family Consultant records at paragraph 12 the Father’s open admission that he spoke to [X] about his proposal and showed her correspondence between the parents.
The Family Consultant recorded the Mother’s concerns about the Father’s parenting as being threefold: that he does not respond to her communication as regards to decisions for [X], that he does not facilitate [X]’s extra-curricular activities, and that he does not provide sufficient financial support for [X]. The Mother perceives the Father as having acted abusively towards her, over the years.
Both parents are recorded as alleging that the other does not comply with Court Orders pertaining to [X].
[X] was 10 years old at the time of the first report interview. At paragraph 32 of the Family Report Ms R records:
[X] (aged 10 years 3 months) presented as being worried about upsetting her parents if she did not agree with their proposals, which each of her parents had discussed with her. She said that her father, in particular, had discussed his proposal with her in depth and she felt that he wanted her to agree with him. [X] stated that her parents discuss things with her which causes her to get upset as she does not know who is telling the truth or who to trust. [X] would like her parents to not involve her in discussion of topics that they are in conflict about. [X] seems to be aware of issues of conflict such as her extracurricular activities, school fees and the amount of time she spends with each parent and of the process by which this conflict is played out, that is, emails. [X] has heard her mother speaking negatively about her father.
At paragraph 34, the Report records [X]’s view that she wanted to stay with her father on the Sunday night of the alternative weekend, so that it became Friday to Monday rather than Friday to Sunday. She would like to continue the alternate Wednesday overnight to Thursday with her father. [X] did not agree with her father’s proposal for equal time.
The Family Consultant’s evaluation commences at paragraph 37. This paragraph is an important one:
[X] is fortunate to have two parents and a step-parent and other extended family members who love her and who want to instil in her their values in life and provide her with positive childhood experiences. She has a father who has strong family values emanating from a Greek family which prioritises family time. She has a mother and step-father who are keen to promote her strength and independence as a female in the modern world and are focussed on her developing to her full potential in educational and other areas. Unfortunately, [X]’s parents seem to feel that their values are mutually exclusive and cannot co-exist.
Part of understanding the conflict between the parents may well be in understanding the different values in life to which they hold.
The predicament that [X] finds herself in is starkly described at paragraph 38 of the report:
[X] is in a very difficult situation, loving both of her parents, being aware of the high conflict between them and having no way of removing herself from the middle of this conflict. For [X], the situation she is placed in by her parents will likely lead to her feeling emotionally stressed and ultimately may lead her to aligning herself with one parent. At the moment, [X] is indicating that she gets upset when her parents tell her two different things and she feels she cannot trust her parents. For [X], her parents’ conflict may also lead to an increased risk of her developing mental health problems, drug and alcohol problems and relationship problems, at the very least.
The parents have been on notice of this for over two years, before the matter came before me for Final Hearing.
The Family Consultant acknowledged at paragraphs 39 and 40 that both parents were also in a difficult situation.
The nature of the dysfunctional relationship between the parents is exemplified at paragraph 41 of the report:
Ms Moher’s application for a recovery order in July 2011 exemplifies the difficulties these parents face. There was no need for a recovery order for [X] at that time, and no need for a police welfare check to be conducted on [X] in her father’s care. What was needed were specific orders in the first place and, in the absence of that, two parents who could focus on [X]’s needs over and above their conflict with one another. It would seem that the sequence of events and communication between the parents in July 2011 are typical of how Mr Gikas and Ms Moher interact as co-parents. Issues over swimming lessons and guitar lessons have apparently led to similar stand-offs. If this style of co-parenting continues, then [X] faces ongoing difficulties.
In addition in paragraph 47, the Family Consultant referred to the email correspondence between the parents noting, in this regard that there
is a distinct feeling of tit for tat behaviour, in that if either parent feels that their expectations are not met, they purposefully do not meet the other parent’s expectations.
At paragraph 44, the Family Consultant observed that
each parent feels that they are being oppressed by the other, in that the other is exerting power and control over them with respect to their ability to parent [X].
The Family Consultant emphasised the need for Orders to be detailed, strict and clear with no possibility of multiple interpretations, and probably no room for flexibility. Judicial experience indicates, however, that achieving this noble aim is very difficult indeed.
The Family Consultant was strongly against an equal time arrangement, but equally strongly in favour of a substantial and significant time arrangement. Her recommendations reflect this.
By the time of the second Family Report interviews [X] was 12 and a half. Her mother had recently given birth to twins. [X] had been spending four nights out of fourteen with her father as well as half the school holidays. The Father’s proposal had changed to seeking five nights per fortnight with him as well as half the school holidays. The level of conflict between the parents was observed by the family consultant to be “ongoing, chronic conflict” (paragraph 7).
[X] was recorded by the Family Consultant as having said that the option of her spending the alternate weekend with her father from Thursday to Monday, instead of Friday to Monday “sounds fine” (paragraph 20).
She indicated, however, that in the alternate week she would prefer to continue to spend time with her father from Wednesday to Thursday, rather than Thursday to Friday.
Paragraph 21 is an important passage:
[X] was asked about the impact of the different options on her parents. She said that, if she were to spend an extra night with her father, she thinks that her mother would be “alright”. She said that, if the arrangement remained as it is, she thinks that her father “might be okay or might be disappointed”. When asked if her thoughts regarding the possibility of spending an extra night with her father are influenced by her father’s possible disappointment if she does not, [X] said “a little bit, but also it would be okay to spend an extra day there”. [X] initially did not report that she perceived either parent to blatantly give her a message that they want her to spend more time with them or less time with her other parent but she later said that her father has mentioned that they would be able to do more homework together if she spent more time with him. She indicated that, sometimes, she feels guilty for not spending more time with her father and that perhaps her father reinforces this feeling but she did not provide specific examples.
The issues of [X]’s guilt, and her sense of parental disappointment, both arise as significant issues.
In the Family Consultant’s evaluation she noted at paragraph 23 that whilst [X]’s exposure to overt conflict between her parents may have decreased, she may still be exposed to the covert nature of their conflict. [X] continues to be placed in a difficult situation in which she has to navigate how to get her needs met whilst being loyal to and pleasing both her parents when they have different values and expectations.
At paragraph 24 the Family Consultant warns:
[X] remains at risk of poor developmental outcomes due to her parents’ ongoing conflicted relationship, however, at this point, she appears to be progressing reasonably well and seems able to maintain positive and meaningful relationships with each of her parents.
Noting that the parameters of the dispute had narrowed, and the question was whether [X] should spend four or five nights per fortnight with her father, the Family Consultant noted, correctly from a legal perspective, that either option would be considered as substantial and significant time.
The Family Consultant noted the obvious importance of [X]’s views, at paragraph 26:
[X] is of an age and maturity that her views can be given significant weight, but her views are not adamant either way. For [X], it does not seem that whether or not she spends an additional night per fortnight with her father is a major issue for her. She is happy with the current arrangement and it appears to be providing her with sufficient opportunity to maintain her relationships with both her parents. She is open to the possibility of spending an additional night with her father but there is an element of her considering this option out of concern about her father’s disappointment if she does not.
In this Court’s opinion the most important paragraph in the Family Report is paragraph 26.
There is no doubt having regard to the evidence before the Court, that the Family Consultant’s assessment of how the parents are likely to react to the matters referred to is correct. At paragraph 28, the Family Consultant concludes:
There are benefits to maintaining the status quo as it seems to be meeting [X]’s needs. It appears to be working for her both practically and in terms of her relationships and emotional wellbeing. If the current arrangement were to be changed, even by one night, it might disrupt an adequate arrangement that has been in place for two years. This is particularly the case when [X] is entering her teenage years and will be increasingly likely to require flexibility from both of her parents rather than having to comply with strict time arrangements.
The Family Consultant’s recommendations are contained at paragraphs 29-33:
29.It is recommended that parental responsibility for [X] be equally shared between the parents.
30.It is recommended that [X] live with her mother.
31.It is recommended that [X] spend substantial and significant time with her father, as she does currently, Friday to Monday in week one and Wednesday to Thursday in week two.
32.It is recommended that [X] spend half of school holidays with her father and that the orders specify exactly when this time is to occur, from start to finish.
33.It is recommended that [X] spend time on special occasions with her father, including Christmas and Easter. Again, it is recommended that the orders specify exactly when this time is to occur, from start to finish.
Ms R was initially extensively cross-examined by the Counsel appearing for both parents on 6 December 2012. There is no need to go into this cross-examination in detail, given that the case before the Court at the conclusion of the hearing was so different to that before the Court on 6 December. It is certainly the case, however, that nothing that either Counsel put to the Family Consultant detracted in any way from the recommendations contained in Ms R’s Report.
She was cross-examined again by the parents on 11 December 2014. She reiterated the matters contained in her Reports. She sought to emphasise in cross-examination to both parents, that as [X] became older she would probably become more assertive in terms of her own needs and interests, whilst not necessarily disrespecting those of her parents. The Father, in particular, sought to minimise the reality of the conflict between the Mother and himself by pointing towards examples of cooperation between the parents. Ms R pointed to the broader evidence on the topic and emphasised the potential impact on [X] of having to navigate life through the minefield of her parents’ conflict. The Father explained to Ms R his belief that one reason why extra time should be ordered is that he believes his existing time is being subtly but continually eroded through the Mother’s non-compliance with the Orders. Ms R explained, however, that even if that were the case the appropriate remedy would be to enforce the Orders, rather than to implement a parenting arrangement that was not child-focused.
The cross-examination once again drew out the issue of the parents’ different values. For example, the Father wanted [X]’s time with him to be opportunities for “time out” from the busy schedule of extra-curricular activities that the Father perceives the Mother has imposed on [X].

Once again, nothing arose in cross-examination that would, in any way, detract from the recommendations of the Family Consultant.

Meaningful relationship

The fact is that [X] enjoys a meaningful relationship with both of her parents and this is a situation which will remain unchanged on any proposal before the Court. It is significant to note that in cross-examination Ms R specifically rejected any proposition that the quality of [X]’s relationship with her father would be affected by the quantity of time that she spends with him.

Protecting [X] from harm

Fortunately, this is one of those cases where there are no issues about protecting [X] from the harm that is referred to in s.60CC(2)(b). There remains the continued risk of potential harm to [X] arising out of exposure to her parents’ conflict. It is disappointing that the parents have been on clear notice of the risks to their daughter if they do not change their behaviour. Regrettably, they do not appear to have taken this on board and continue, to varying degrees, to blame each other for the problems that are, from this Court’s perspective, unequivocally shared between them.

[X]’s views

This is a very important consideration in this case. As the Family Consultant noted, [X] is of an age and maturity that her views can be given significant weight. However, her views are not adamant either way. From [X]’s perspective, it does not seem to matter whether the Court adopts the Mother’s proposal, or the Father’s proposal. What is clear is that she is happy with the current arrangement, but is nonetheless open to the possibility of spending an additional night with her father. The weight that might otherwise be accorded to this openness to spending an additional night with her father is, in this Court’s opinion, greatly mitigated by the emotional impact on [X] of how her parents would respond to any change in the existing arrangement. This will be discussed below. Thus, whilst [X]’s views are a very important consideration in this case, her views are equivocal and, in any event, there is reason not to place determinative weight on her views.

The nature of [X]’s relationships

The evidence before the Court indicates that [X] enjoys excellent relationships with both her parents and the extended families on both sides. There is no evidence to suggest that making any change to the current parenting arrangements will have any impact whatsoever on the good relationships that she has.

Willingness and ability to facilitate and encourage relationships

Clearly, it is the Father’s case that the Mother has, by his perception, systematically sought to undermine his relationship with [X]. That perception is not borne out by reality. There are a number of obstacles to the Father’s perception being accepted on the evidence. Firstly, the fact is that even if the situation were as he described, [X] continues to enjoy an excellent relationship with him. Secondly, the events that he refers to in his Affidavit as demonstrating the Mother’s inability to facilitate [X]’s relationship are more correctly characterised as simple manifestations of the parents’ inability to communicate with each other, to reach agreement about matters that are not covered in the Orders, and to a lesser extent demonstrate inability to comply with the Orders, a problem that seems to cut both ways. There is, on the evidence before the Court, no substance to the Father’s contention. The Family Consultant certainly found no basis for being concerned.

The likely effect of change on [X]

At a basic level the Court is satisfied that even if the Father’s proposal were adopted, it is not an unmanageable change for [X]. It is the emotional impact on [X] that is the Court’s greatest concern, and this is linked to the Family Consultant’s observations about how the parents might react to the change. The Family Consultant identified two dangers here. She predicted that if the Court did not adopt the Father’s proposal, he would likely feel frustrated and disappointed, causing [X] to experience feelings of guilt. However, if the Father’s proposal were adopted, the Mother would likely feel frustrated and angry “and [X] may be increasingly influenced by her mother against her father when there are differences of opinion.” Clearly, [X] is in a terrible situation, one that the parents must recognise as being a situation they have themselves created. It is a question of which is the lesser of two evils: feeling guilt because she has not pleased her father or being influenced by her mother against the Father because the Mother has not been pleased. The latter is, in this Court’s opinion, clearly the greater evil. It would be tragic indeed if the Father were to win the metaphorical battle for extra time, but lose the war as his relationship with [X] deteriorates. That is a risk that the Court is not prepared to take, especially in circumstances where [X] enjoys such a good, strong, meaningful relationship with her father without adding more time.
Implicit in the Family Consultant’s recommendations, especially at paragraph 28, is that maintaining the status quo is in fact the best outcome for [X].
Again, the parents need to understand what the Family Consultant tried to tell them, both in the Family Report, and in her oral evidence. As [X] enters her teenage years, commences individuation, and starts exercising her emerging autonomy, there will be inevitable changes in the relationship she has with both her parents which require her parents to become more flexible. In this respect, change is an inevitable factor in [X]’s life, as well as in her parents’ life.

Issues of practical difficulty and expense

No such issues exist in this case.

Parental capacity

There is only one blind spot in the capacity of [X]’s mother and father to provide for her needs, and that is that they seem unwilling, or incapable of changing the nature of their relationship with each other so as to improve their communication and minimise their conflict, especially in terms of exposure to [X]. At the Final Hearing the mother seemed more insightful about the need to change, and willing to embrace change, than the father. From [X]’s perspective, this is disappointing. Her father did not appear to be willing to even try to change the nature of his relationship with [X]’s mother by way of some sort of therapeutic intervention. In all other respects, [X] could not wish for a better mother and father and, indeed, extended family.

Issues of maturity, lifestyle and background

There are no issues in this regard. On any scenario [X] will continue to enjoy all the benefits of her father’s Greek cultural background, and the fusion of her mother’s Italian/Australian/Asian family life.

Parental attitudes

Again, the only criticism about the parents is in relation to the parental conflict and their seeming inability to disengage and to better communicate with each other about [X]. Moreover, this Court finds that the Father’s persistence in this litigation did not demonstrate much child focus, particularly after the release of the second Family Report when the spotlight was clearly thrown onto the dilemma confronting [X], whatever happened in this litigation. The Court finds there was an element of the Father seeking to advance his own needs over and above that of [X]’s. This is unfortunate. Often it is a fine line that separates the zealous desire to achieve something that is in the best interests of the child, from a zealous desire to achieve something that a parent wants personally. Once the second Family Report was released, the Father should have recognised that the best thing to do for [X] was to discontinue his pursuit for extra time.

Order least likely to lead to further proceedings

This is a very difficult matter to aspire to, on the facts of this case and having regard to the litigation track record of the parents. The Mother should be under no misapprehension that this Court believes that if she does not comply with Court Orders, the Father will initiate contravention proceedings. However, both parents need to recognise that it is possible that any Order that this Court makes will have a short shelf life because of the developmental considerations already adverted to, that is, [X] exercising greater autonomy and individuating.

Discussion

Neither parent sought to displace the statutory presumption of equal shared parental responsibility. Both made complaints, however, about the other’s participation in decision making. Somehow the parents have muddled through in this regard. In any event, the presumption clearly applies.
The Court is required to consider equal time, but neither parent sought equal time nor, clearly, would it have been in the best interests of [X].
Both parents advanced proposals for substantial and significant time and the Court find that, notwithstanding the difficulties that are referred to earlier in these reasons between the parents, substantial and significant time is both reasonably practicable and in [X]’s best interests.
However, having regard to all the matters set out above it is not in [X]’s best interest that there be any further change to the current spend time with arrangement with her father, except that, consistent with [X]’s wishes, the overnight time in the alternate week will shift from Thursday night to Wednesday night.
The focus then turns on the remaining, and less contentious Orders pertaining to [X]. There are several documents in place now that record the Orders relating to [X] and it is opportune, and necessary, to create the one consolidated document that deals with these matters. It is also an opportunity for the Court to be prescriptive in terms of the drafting of these Orders. An attempt will be made to do so. The obvious difficulty for the Court is that neither parent made submissions as to peripheral issues (such a special days, etc), and the evidence of the parents remains untested. The impression formed from what evidence there is that the parents have somehow stumbled through so far. It is therefore best for the Court to adopt a minimalist approach, lest it actually create contention where there is none.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 6 March 2015

Schedule One

Orders made 7 December 2012

Commencing the First School Term in 2013, order 4.1(b)(i)(A) made on 6 June 2006 be varied as follows:
a.in lieu of the words “until 6.30pm Sunday with the Husband to have the child fed and bathed by the time of her return”; insert the words “until before school on Monday”;
Order 4.1(b)(i)(C) made on 6 June 2006 be discharged.
Orders 4.1(b)(iii), (iv), (v) and (vi) made on 6 June 2006 be suspended so far as they may relate to the Summer school holidays commencing in December 2012 (“the upcoming Summer school holidays”) and in lieu thereof:
a.the Child shall spend time with the Father during the upcoming Summer school holidays as follows:
i.from the end of the Fourth School Term in 2012, being the afternoon that school breaks for the said holidays, until 9 am on 26 December 2012;
ii.from 9 am on 27 December 2012 until 9 am on 4 January 2013;
iii.from 5 pm on 23 January 2013 until 5 pm on 27 January 2013
b.the Child spend time with the Mother during the upcoming Summer school holidays as follows:
i.from 9 am on 26 December 2012 until 9 am 27 December 2012;
ii.from 9 am on 4 January 2013 until 5 pm on 23 January 2013;
iii.from 5 pm on 27 January 2013 until the conclusion of the said school holiday period.
That, without admissions, the Father shall not attend upon [X]’s school during periods of time that [X] is living with her Mother pursuant to orders of this Court except:
a.unless otherwise agreed in writing between the parties;
b.in an emergency which requires the collection of the child from school by a parent;
c.the attendance at school by the Father for the purposes of an appointment with [X]’s teachers or the school principal;
d.the attendance at school by the Father for the purposes of attending school activities and functions that parents are invited to attend.
That the Child, [X], born [omitted] 2001 be permitted to travel to the United States of America with the Mother during the upcoming school holidays.

Notation:

A.the Father, Mr Gikas, of the Child, [X], consents to the Child travelling to the United States of America as provided for above and the Father’s signature below confirms such consent;
B.that, without admissions, the Mother agrees that the Child, [X], shall be in the care of an adult at all times during her travels to and in the United States of America.

Schedule Two

Orders sought by Father in Amended Response filed 9 August 2013

The parties have equal shared parental responsibility of the child, [X] (“the child”) born [omitted] 2001.

The parties to have sole responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is living with them, except as otherwise provided in these orders.

That the child lives with the mother other than at times when the child is living with the father as follows, in a two(2) week cycle:

(a) In week one (1) from the conclusion of school on Thursday until the commencement of school on Monday and

(b) In week two (2) from the conclusion of school on Thursday to before school on Friday morning.

(b) Week 1 shall commence the first Thursday after the Orders are made.

(c) At other times as agreed between the parties.

School Holidays

Order 3 shall be suspended from the commencement of each school holiday period until the conclusion of each school holiday period.

Where school holidays commence during an odd numbered year the child is to live with the father for the first half of each school holidays and the child is to live with the mother during the second half of each school holidays or as otherwise agreed between the parties.

Where school holidays commence during an even numbered year the child is to live with the mother for the first half of each school holidays and the child is to live with the father during the second half of each school holidays or as otherwise agreed between the parties.

For the purpose of the orders, a school holiday period commences at the conclusion of the school day (or at 3.00 pm if the child is not attending school on that day) on the last day of term as determined by the school that the child is attending.

For the purpose of the orders, a school holiday period concludes at the commencement of the school day (or at 9.00 am if the child is not attending school on that day) on the first day of the following term as determined by the school that the child is attending.

For the purpose of these orders, a day described by the school as a “pupil free day”, where that day falls at the end of a school holiday period, shall be deemed to be part of the school holidays.

For the purpose of the orders, the first half of each school holiday period concludes at 5.00 pm.

Changeover

For the purposes of changeover, the parent with whom the child is to live immediately following upon the conclusion of school, shall be responsible for collecting the child from school.

Where these orders involve a changeover in the living arrangements of the child which does not involve the delivery to or collection from school, the parent with whom the child will be living following upon that change over shall be responsible for collecting the child from the parent with whom the child had been living up to that time, with the changeover to occur at the home of the relevant parent.

Where in these orders, the child is to be delivered to school the parent with whom the child had been living at the time shall be responsible for delivering the child to school.

The child’s birthday

The child is to live with the father on the child’s birthday in each odd numbered year from 9:00am (or from the commencement of school if it is a school day) on the child’s birthday until 9:00am (or until the commencement of school if it is a school day) on the following day.

The child is to live with the mother on the child’s birthday in each even numbered year from 9:00am (or from the commencement of school if it is a school day) on the child’s birthday until 9:00am (or until the commencement of school if it is a school day) on the following day.

The Father’s birthday and Father’s Day

The child is to live with the father on the father’s birthday and on Fathers’ Day in each year from 9:00am (or from the commencement of school if it is a school day) until 9:00am (or until the commencement of school If it is a school day) on the following day.

The Mother’s birthday and Mother’s day

The child is to live with the mother on the mother’s birthday and on Mothers’ Day in each year from 9:00am (or from the commencement of school if it is a school day) until 9:00am (or until the commencement of school if it is a school day) on the following day.

Greek Orthodox Easter

Where Greek Orthodox Easter falls on a different date from the Roman Catholic Easter, then the child shall live with the father from 9:00am on Good Friday until 9:00am on Easter Monday or as otherwise agreed by the parties.

Where Roman Catholic Easter falls on a different date from the Greek Orthodox Easter, then the child shall live with the mother from 9:00am on Good Friday until 9:00am on Easter Monday or as otherwise agreed by the parties.

Where Greek Orthodox Easter falls on the same date as the Roman Catholic Easter, then the child shall live with the father from 9:00am on Good Friday until 9:00am on Easter Sunday or as otherwise agreed by the parties.

Where Greek Orthodox Easter falls on the same date as the Roman Catholic Easter, then the child shall live with the mother from 9:00am on Easter Sunday until 9:00am on Easter Monday or as otherwise agreed by the parties.

Christmas and New Year’s Day

The child to live with the father in each odd numbered year from 5:00pm on Christmas Eve until 9:00am on Boxing day.

The child to live with the mother on Boxing day in each odd numbered year from 9:00am until 6:00pm.

The child to live with the mother on each even numbered year from 5:00pm on Christmas Eve until 9:00am on Boxing day

The child to live with the father on Boxing day from 9:00am until 6:00pm in each even numbered year.

The child to live with the father on New Year’s Day during each odd numbered year from 9:00am on New Year’s Day until 9:00am on 2 January.

The child to live with the mother on New Year’s Day during each even numbered year from 9:00am on New Year’s Day until 9:00am on 2 January.

Non-Denigration

Each of the parties is restrained from denigrating the other party in the presence or in the hearing of the child.

Each of the parties is restrained and/or shall restrain any other person from using physical discipline on the child.

Emergency and Medical attention

Each party shall immediately notify or cause to be notified the other parent in the event of any sickness, injury or serious misadventure of the child.

In the event the child requires medical attention, the parent in whose care the child is shall ensure that the other parent is kept reasonably informed about such circumstances.

Extra-curricular activities

In the event that the child has school functions, or extra curricula activities, the parent with whom the child is living at the time, shall ensure the child’s attendance.

Neither party shall enrol or continue to enrol the child in any extra curricula activity nor allow the child to attend any extra curricula activity without the knowledge and consent in writing of the other parent and in accordance with the child’s wishes.

Either party shall be at liberty to attend the child’s extra curricula activities

School Reports

That each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child or either of them to discuss with the Father the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other material produced by the school and distributed to parents relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.

The child’s name

The child’s name will at all times remain as [X]. The child’s name shall not be altered, modified, hyphenated or have any other name, letter, word or symbol added to or taken away from it in any way.

Telephone contact

The parties shall be at liberty to contact the child by way of telephone at all reasonable times and/or between 6:00pm and 8:00pm, when the child is not in that parties care and control and the party with whom the child is living shall keep their mobile phone charged and accessible to the child.

That in the event, that the child receives a mobile phone, then the child shall be at liberty to contact the parents as she wishes and either parent, within reason, can contact the child when they are not in their care and control.

Travel

In the event that either party wishes to travel interstate with the child, then that party must provide, in writing to the other party, within 7 days of the intended date of travel, all itinerary details and contact details of the child during this period.

That neither party shall travel outside of Australia with the child, without first obtaining the written consent of the other party and upon consent being provided, the travelling party to provide within 4 weeks of the departure date, airline tickets, itinerary and contact details for the child during this period.

Uniform

Each party shall purchase a full set of the child’s school uniform and sports uniform and each party shall ensure it is packed and travels with the child to and from each parent’s home.

Communication

That the parties be restrained from involving the child in any negotiations that relate to the father’s time with the child or any other matters that relate to the child.

That the parties shall not make any arrangements that involve the child that disrupt the time of the other parent with the child, without prior consent of the other parent.

That the parties communicate with each other by email with respect to all matters that relate to the child.

That in the event that either parent is unable to care for the child, during their time with the child, then that parent must contact the other parent and offer them the care and control of the child as the first option.

That in the event that one parent has arranged for the child to stay overnight at a residence that the other parent is not aware of, then that parent shall provide all contact details to the other parent, at least 24 hours prior to the child spending overnight time.

[2015] FCCA 17

6 March 2015

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