MORTON & MORTON
[2014] FamCA 672
•21 August 2014
FAMILY COURT OF AUSTRALIA
| MORTON & MORTON | [2014] FamCA 672 |
| FAMILY LAW – PARENTING – Consideration of whether the father should spend equal time or substantial and significant time with the children during school term – Where the Family Consultant recommends the children continue to live with the mother and spend time with the father five nights in a fortnight (the current arrangements) – Where an order for equal shared parental responsibility is to be made by consent - Where ss 65DAA(1), (2) and (5) of the Family Law Act 1975 (Cth) are triggered – The interpretation of the word “consider” as it is used in ss 65DAA(1) and (2) - Where the decision is finely balanced – Where it is possible pursuant to ss 65DAA(1)(a) and ss 65DAA(2)(c) for there to be more than one correct answer to the question of what would be in the best interests of the children – Where both parties’ proposals are in the children’s best interests – Where the mother asserts the parties have had difficulty communicating – Where it is found that the parties have been able to communicate for the purposes of implementing their current shared care arrangements – Where the Family Consultant agreed there was no indicia contra-indicating the notion that an equal time arrangement was reasonable practicable – Where an order is made that the children first spend increased time with the father and for that time to increase to equal time by November 2015 |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| CDJ & VAJ (1998) 197 CLR 172 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Morton |
| RESPONDENT: | Ms Morton |
| FILE NUMBER: | SYC | 45 | of | 2013 |
| DATE DELIVERED: | 21 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 - 13 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Diana Perla & Associates |
Orders
Save for order 3.1, orders be made by consent in accordance with Exhibit 2.
That in lieu of order 3.1 in Exhibit 2, the following order be inserted:
3.1 Each alternate week from after school on:
From the date of these orders until 13 November 2015
3.1.1Tuesday (or 3pm if a non-school day) until return to school on Monday morning (or 8.30am if a non-school day), with such time to commence on the first Tuesday following the making of these orders;
From 13 November 2015 onwards
3.1.2Monday (or 3pm if a non-school day) until return to school on the following Monday morning (or 8.30am if a non-school day), with such time to commence on the first Monday after 13 November 2015;
THE COURT NOTES THAT A SET OF ORDERS WILL BE ISSUED AS FOLLOWS:
IT IS NOTED THAT:
A.The following definitions for the purpose of these Orders:
A.1"Act" means the Family Law Act 1975 (Cth);
A.2"D" means D Morton, born … 2007;
A.3"children" means B, C and D;
A.4"Husband" means the Applicant Husband;
A.5"Wife" means the Respondent Wife;
A.6"B" means B Morton, born … 2004;
A.7"parties" means the Husband and the Wife;
A.8"party" means the Husband or Wife; and
A.9"C" means C Morton, born … 2005.
IT IS ORDERED THAT:
The Husband and the Wife have equal shared parental responsibility in consultation with one another for making decisions on major long-term issues relating to the children.
The Wife have responsibility for making decisions of the day to day issues relating to the children when they live with her, and the Husband have responsibility for making such decisions for the children when they live with him.
The children live with the Husband:
3.1each alternate week from after school on:
From Date of these Orders and until 13 November 2015
3.1.1 Tuesday (or 3pm if a non-school day) until return to school on Monday morning (or 8.30am if a non-school day), with such time to commence on the first Tuesday following the making of these orders;
From 13 November 2015 onwards
3.1.2 Monday (or 3pm if a non-school day) until return to school on the following Monday morning (or 8.30am if a non-school day), with such time to commence on the first Monday after 13 November 2015;
3.2for one-half of each school holiday, which half to be agreed between the parties in writing and failing agreement, the second half (in even numbered years) and the first half (in odd numbered years), when the time the children otherwise spend with the Husband pursuant to 3.1 above abate;
3.3should the children not otherwise be living with the Husband for the half of the December/January school holiday in which Christmas Day is, and the Husband be in the same city as the children on Christmas Day, then for such time as agreed between the parties and failing agreement, from 11.00am on Christmas Day until 11.00am on Boxing Day;
3.4should the children not otherwise be living with the Husband for the half of the December/January school holiday in which New Year's Day is, and the Husband be in the same city as the children on New Year's Day, then for such time as agreed between the parties in writing and failing agreement, from 3.00pm to 8.00pm on New Year's Day;
3.5should the children not otherwise be living with the Husband on the dates detailed below pursuant to Orders 3.1 to 3.4 (inclusive) above, then:
3.5.1 from 9.00am to 8.00pm on Father's Day;
3.5.2 from 9.00am to 8.00pm on the Husband's birthday (or from after school until 8.00pm should that day be a school day); and
3.5.3 for not less than 3 hours on each of the children's birthdays at such a time as agreed between the parties in writing and failing agreement, between 5.00pm and 8.00pm; and
3.6at such times as agreed between the parties in writing.
The time the children are to live with the Husband pursuant to Order 3.1 abate during school holidays, unless otherwise agreed between the parties in writing.
The children live with the Wife at all other times, such times to include (if the children are not already living with the Wife pursuant to these Orders):
5.1for one-half of each school holiday, which half to be agreed between the parties in writing and failing agreement, the second half (in odd numbered years) and the first half (in even numbered years;
5.2should the children not otherwise be living with the Wife for the half of the December/January school holiday in which Christmas Day is, and the Wife be in the same city as the children on Christmas Day, then for such time as agreed between the parties and failing agreement, from 11.00am on Christmas Day until 11.00am on Boxing Day;
5.3should the children not otherwise be living with the Wife for the half of the December/January school holiday in which New Year's Day is, and the Wife be in the same city as the children on New Year's Day, then for such time as agreed between the parties in writing and failing agreement, from 3.00pm to 8.00pm on New Year's Day;
5.4should the children not otherwise be living with the Wife on the dates detailed below pursuant to Orders 5.1 to 5.3 (inclusive) above or otherwise pursuant to these Orders, then:
5.4.1 from 9.00am to 8.00pm on Mother's Day;
5.4.2 from 9.00am to 8.00pm on the Wife’s birthday (or from after school until 8.00pm should that day be a school day); and
5.4.3 for not less than 3 hours on each of the children's birthdays at such a time as agreed between the parties in writing and failing agreement, between 5.00pm and 8.00pm; and
5.5at such times as agreed between the parties in writing.
Each party be permitted to take the children on holiday during the time that the children live with them, provided that:
6.1if the holiday in question is to be longer than 7 nights in duration, the party in question then provides to the other party not less than 28 days before the holiday is to commence, a copy of the itinerary, including details of flights, places of accommodation (including room numbers when available), and telephone numbers on which the children can be contacted during the holiday; and
6.2the holiday take place only during that portion of the school holiday period that the children are to live with the party in question pursuant to these Orders (unless otherwise specifically agreed between the parties in writing).
For the purposes of the children living with each of the parties above, save insofar as otherwise agreed between the parties in writing, the Wife deliver the children to the Husband's residence (or to school if pursuant to these Orders and a school day), at the commencement of any period that the children are to live with the Husband and the Husband deliver the children to the Wife's residence (or to school if pursuant to these Orders and a school day) at the conclusion of any period that the children are to live with the Husband.
For the purposes of the school holiday periods referred to in these Orders, school holidays be such holiday periods as published (including on the school in question's website) by the schools the children attend from time to time, and are to include pupil free days falling on either side of such holiday period.
The parties forthwith do all acts and things and sign all documents necessary to authorise the school that each of the children attend (and do so in the future within 7 days of the children attending a new school) to provide the other parent with a photocopy of all reports, newsletters and announcements of school activities or otherwise pertaining to the education of any of the children, and that party provide written particulars to the other party of any reports and activities which the school has placed the other party on notice of verbally but has not provided any written particulars, to the other party within 3 days of being provided such notice.
Within 14 days of the date of making these Orders, the parties do all acts and things and sign all documents necessary to authorise each medical professional or health care provider, treating the children (or having treated the children or either of them) to provide a copy of any test results, letters of referral, reports and other letters relating to the treatment of the children, to that party, and that party otherwise provide to the other party the name address and telephone number of each medical professional currently treating any of the children.
Each parent make available to the other, all medications prescribed on behalf of the children (or either of them) simultaneously with the children being collected/dropped off when living with either party pursuant to these Orders.
The parties each notify the other as soon as possible and in any event within 12 hours, of any serious injury or illness suffered by the children while in the care of that party.
Each party notify the other not more than 24 hours after any change of their residential address, landline, mobile telephone number and/or email address.
The parties each be restrained from denigrating the other in the presence or hearing of the children to any third party, or permitting any other person to do so (including but not limited to the children) whether in person, by telephone, email, SMS, or otherwise.
The parties each be entitled to telephone the children at all reasonable times when the children live with the other (to include on each parties' land and mobile telephone line).
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morton & Morton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 45 of 2013
| Mr Morton |
Applicant
And
| Ms Morton |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
A choice is to be made between two competing proposals about how much time the father will spend with the three children during school term. The father wants to build to an equal time arrangement and the mother wants the current five nights a fortnight arrangement to remain. The parties have agreed upon all other parenting orders, including an order for equal shared parental responsibility. The children will thrive under either arrangement so the decision is finely balanced. When considering which proposal is in the children’s best interests the question arises as to whether or not both of the proposals can be and if they can be, how the choice is to be made.
APPLICATIONS
The father does not propose an equal time arrangement be introduced immediately. The father asks the court to provide that there be a building towards equal time in two steps; initially six nights a fortnight, moving to seven nights a fortnight during school term in November 2015. The mother sought orders that the current arrangements remain as they are. The children are spending five nights per fortnight with the father from after school Thursday until before school Monday.
DOCUMENTS RELIED UPON
The documents the parties relied upon are set out in Schedule 1.
SHORT HISTORY
The father was born in 1972 and is currently aged 42 years old.
The mother was born in 1973 and is currently aged 41 years old.
The parties married in 2002.
The parties’ first child, B, was born in 2004 and is currently aged 10 years old.
The parties’ second child, C, was born in 2005 and is currently aged eight years old.
The parties’ third child, D, was born in 2007 and is currently aged six years old.
The parties separated on 23 December 2011 (or 7 January 2012 according to the mother) and their divorce became final on 20 March 2013.
CREDIT
Each party invited me to make credit findings in their favour. Both parties gave their evidence in a straightforward manner and I did not gain the impression that either of them were at any time attempting to be untruthful. In her affidavit evidence, the mother focused upon a number of discrete events which may not have warranted a mention had it not been for how even the balance is between the parties’ competing proposals. There is no doubt that each of the parties have different perceptions as to what happened during a small number of events that were singled out for particular focus during the evidence, including what tone was used during interactions between the parties. There is some disagreement between counsel for each of the parties as to the tone to be inferred from particular exchanges of text messages. Whilst that level of subtle differentiation might be attractive in a controversy as evenly balanced as the one I am asked to decide, it is not possible in this case to say that either party’s credit has been impugned. It is not appropriate nor ultimately necessary to make findings about the credit of the parties.
The father pointed to the fact that concessions made by the mother in her oral evidence did not sit neatly with assertions she made against the father in her written evidence. Whilst that is partly accurate, the ease with which the mother made concessions and agreed in cross examination with propositions that were favourable to the father, was significantly to her credit. I do however accept the general submission that concessions made by the mother weaken substantially complaints that she made against the father in her written evidence.
I will content myself with commenting upon the significance of any difference in the evidence of the parties to the overall determination that I need to make in this case.
DETAILED CHRONOLOGY
The father was born in 1972 and is currently aged 42 years old.
The mother was born in 1973 and is currently aged 41 years old.
The parties commenced cohabitation in or about mid-2001. The mother contends she and the father commenced a de facto relationship in or about the middle of 1994 but moved back into their respective parents’ homes in 1995 to save money. She asserts that in 2000 the parties secured a property at Woollahra and moved in together.
The parties married 2002.
In late 2002 the mother resigned from a position she had held for nine years.
The mother asserts that in 2003 she and the father made the decision together that she would not re-enter the workforce on a permanent or part time basis until the children were self-sufficient.
B was born in 2004 and is currently aged 10 years old.
C was born in 2005 and is currently aged eight years old.
D was born in 2007 and is currently aged six years old.
Prior to separation the parties had organised a family holiday to Country E for Christmas. The children and the mother travelled ten days prior to the father arriving on 20 December 2011. The mother asserts the father was supposed to stay until 5 January 2012 but only remained for two days, until 22 December 2011, because he stated that he had work commitments. The father says he returned home because he had discovered that the mother was having an affair. The mother concedes a close emotional relationship with a third party but denies it was an affair.
The father says the parties separated on 23 December 2011. The mother says it was on 7 January 2012.
On 7 January 2012, despite the father sending the mother a text message to indicate he would be picking her and the children up from the airport on their arrival back to Sydney, the father did not attend the airport and instead the maternal grandmother collected the mother and children. Whilst the mother and children were overseas the father discussed with the maternal grandmother, and her partner, his intention to separate from the mother and he produced to the maternal grandmother an envelope with 91 pages of text messages between the mother and a third party.
The mother says that on her arrival back in Sydney, she became aware that the father had changed the locks on the former matrimonial home, packed up her personal belongings and packed her a suitcase of her and the children’s summer clothing. The father left these belongings along with the mother’s car at the maternal grandmother’s home and the mother and children were taken to the maternal grandmother’s home on return from the airport. The mother states that the father did not pack any of the children’s belongings and has since not provided the mother with any of the children’s toys.
The following morning the father arrived at the maternal grandmother’s home and spent a short time with the children. From this time the father did not spend time with the children at the former matrimonial home until the mother was able to secure rented premises with the children. The mother asserts that she did not feel it was to the children’s benefit to go back to the former matrimonial home when they did not have a home with her. The mother and children resided at the maternal grandmother’s home for three weeks. When the mother secured rental accommodation the father provided her with $1,200 per month for rent and a lump sum payment of $20,000 for furnishings. The mother also asserts that the father told her he would pay her $1,500 per week, but would not pay for anything else except for private health insurance. The mother had to use this money for all of the children’s expenses including clothing, extracurricular activities, school fees, uniforms etc.
On or around 31 January 2012 the father informed the mother he wanted to take the children overseas at the end of Term 1that year. The mother complains the father did not provide the mother with any information about the trip until two weeks prior to their departure, and did not provide her with the itinerary of the trip until six days prior to departure. The father says this was because he did not have the itinerary until that time.
From late January/early February 2012 the father began to spend each alternate weekend from Friday to Sunday with the children, and each Tuesday night.
On 9 February 2012 the mother telephoned the father to discuss the possibility of the children seeing a family counsellor to talk through their feelings after the separation. The mother says the father refused.
From about 20 March 2012 until 23 May 2014 (when the parties appeared before me for the first day of the less adversarial trial) the parties’ communication was mainly by email and SMS.
The mother began dating her partner, Mr F (“Mr F”), in June 2012. The children met Mr F and his son at the end of June 2012.
On 19 August 2012 the mother says the children informed her that the father had been denigrating her. The mother texted the father requesting he not continue to denigrate her in front of the children. The father denied such denigration. Neither party was asked any questions about this during the hearing.
On 31 August 2012 the mother sent the father an email to advise him of an appointment she had booked with a child psychologist for B. The mother asserts that initially the sessions were helping B, however after two months B indicated she no longer wanted to attend. In oral evidence the mother said that both she and the father were involved in the therapy with B.
In September 2012 the mother took the children to Country G for one week with Mr F, the maternal grandmother and her partner. The mother provided the itinerary of the trip to the father six days prior to departure. She says this was in the context that she only organised the trip four weeks before departure.
On 16 September 2012 the father says B was resistant to return to the mother’s home and the father had to persuade her to return. Just prior to the father returning the children to the mother’s home B said to the father:
“Daddy I don’t want to go back to mum’s house. Her boyfriend [Mr F] [referring to [the mother’s] new partner – who is [the mother’s] current partner …] is always there and I feel real uncomfortable.”
The father encouraged B to return. A short time later B telephoned the father as if she was crying and said to him “Dad I don’t want to stay here tonight…I want to be with you please…”. B also sent the father a text message “I am scared. I want you [dad].” This incident is discussed in more detail below.
Around late November 2012 the mother says that she and the father met to discuss financial issues, however at that meeting the father did not want to talk about financial settlement but rather indicated that he wanted to spend time with the children on an equal time basis as of 1 January 2013.
On 4 December 2012 the father sent the mother an email in relation to his request for equal time with the children and requesting her to attend family dispute resolution. The father says at a meeting between the parties on 6 December 2012 the mother refused to discuss parenting matters.
The mother made an appointment at a Family Resolution Centre on 19 December 2012. The father instead arranged for a private family resolution meeting with Ms H on 10 January 2013.
On 10 January 2013 the parties attended mediation with Ms H and agreed to the children continuing the arrangement of the children spending five nights per fortnight with the father from Thursday to Tuesday, with the father collecting and returning them to school.
On 1 February 2013 the father’s time with the children increased to Thursday to Tuesday each fortnight.
The mother attended a “kids in focus” seminar on 12 February 2013 which focused on helping children through separation and change in their lives.
The parties’ divorce became final on 20 March 2013.
The mother and Mr F separated shortly in March 2013. Mr F accused the mother of ‘cheating’ and he posted a series of images on Instagram relating to the mother being a cheater. At the time the children were with their father. The mother rang the father because the children were friends with Mr F on Instagram and there was a risk that the children would see the material that Mr F had posted. The father on this occasion laudably cooperated with the mother to protect the children from seeing the material that had been posted by removing the children’s connection with Mr F on Instagram.
The mother and Mr F reconciled in or around April 2013 and at that time travelled to Country I for a holiday. The mother arranged for the children to live with the maternal grandmother during the first week of those school holidays, and the second week with the father. The mother asserts that upon her return C said to her words to the effect “I asked Dad why doesn’t he like Grandma and he said ‘not particularly – she’s okay’”. During oral evidence the mother raised concern with the fact that the father did not volunteer to have the children during the first week of the mother’s trip to Country I. I place little weight on that concern given that the mother did not make any offer to the father that he could have the children whilst she was overseas; had in fact arranged for her mother to look after the children during the period of time the children would normally have been with her during the holidays, and had notified the father that that was going to be the arrangement.
The father says in July 2013 the parties agreed upon orthodontic treatment for B.
In August 2013 the mother says she saw the children with the father in the street. The mother asserts the children barely greeted her and seemed uncomfortable.
On 26 August 2013 an incident occurred where the children were misbehaving in the bathroom together at the father’s home. Despite the father warning them to stop, the children commenced antagonising and fighting with one another in the shower. The father says he heard a loud scream and became concerned for their safety and he gave them a smack on their bottoms with an open hand and said “Stop. It is dangerous to fight with each other in the shower.” C took a photo of a red mark on her bottom from the smack and sent it to her mother. The father says the hot water in the shower made the red mark look worse and he did not smack either of the children with any substantial force. This issue was not referred to in the course of the hearing.
In November 2013 the parties were able to negotiate changes to B and C’s swimming lessons.
On 21 December 2013 an incident took place at the front of the father’s property. The incident was the subject of substantial oral evidence and is discussed in more detail below.
In January 2014 the father agreed to the mother taking the children on a cruise during his holiday time.
On 24 January 2014 an electronic exchange occurred between the parties about school shoes. In her interview with the family consultant, C referred to the exchange as a “text war”. This is discussed in more detail below.
On 25 April 2014 the children informed the mother that they had spent the night at the paternal grandmother’s home without the father. Their older male cousin J had been sleeping there too, despite a prior agreement between the parties that the children not spend any overnight time with J.
In May 2014 the parties jointly communicated with each other and with C’s school over difficulties she was having there.
The mother says at the school Athletics Carnival on 26 June 2014 the father barely greeted her and was uncomfortable and “standoffish”. The father denies this was the case.
On 16 July 2014 the mother asserts D blamed the mother for separating the family.
ISSUES WHICH WERE EMPHASISED IN THE EVIDENCE
Simmering tension between the parties
During the hearing the parties and the family consultant settled upon the expression “simmering tension” to describe any angst that existed between the parties. Certainly when the evidence is viewed as a whole, the relationship between the parties cannot be described as acrimonious. A number of events were explored during oral evidence.
Incident on 21 December 2013
There is some broad agreement as to what happened on 21 December 2013 at the front of the father’s property. The mother had asked the father whether she could have the children in their ordinary time with their father so that she could take them to an early Christmas lunch at her mother’s home. The father had agreed. The mother was returning the children to the father. She travelled with the children, her partner Mr F and his son K in a maxi-taxi to a place near the father’s home which is in a walled estate. The mother and the children got out of the vehicle and walked to the front of the father’s property. K and Mr F followed a short distance behind. The father was in his front garden. The children ran into the father’s property and greeted their father. The father perceived at that time that the children were agitated. He checked that they had said goodbye to their mother. The mother indicated she wanted to say final goodbyes to the children. The father asserts that Mr F said “We want to say goodbye to our children”. The mother said she made a gesture that she was going to introduce Mr F and K to the father. It is agreed that the father declined the invitation to meet Mr F and K and said words to the mother to the effect, “Please don’t embarrass me”. There is a disagreement between the parties as to what tone the father used when he said those words. The mother’s perception is that the father was rude and abrupt. The father’s perception was that both the mother and Mr F were affected by alcohol. The mother agrees that she and Mr F had been drinking at the pre-Christmas lunch but says that they were not affected by alcohol. The mother, Mr F and K left the front of the father’s property (the mother said she had to “fight back tears”) and the father took the children inside his home. The father says that the children indicated to him at that time that Mr F had said to them on a number of occasions whilst they were driving to the father’s property in the maxi-taxi that he was going to meet their father because they had met K’s mother. The father described this as Mr F “taunting” the children and in his view that was the source of the children’s anxiety when they arrived at his front gate.
Counsel for the father did not seek to examine Mr F to test him on his version which was silent as to whether or not there was any conversation between he and the children in the taxi on the way to the father’s home. The impression Mr F gives on the fact of his written evidence is that K jumped out of the taxi cab and ran after the girls and he was simply following K in a spontaneous way. The mother does not give any evidence in her affidavit as to what may or may not have been said on the maxi-taxi prior to arriving at the father’s home. She says that when she arrived at the front of the father’s property, Mr F and K were at least two to three metres behind her.
It was put to the father by counsel for the mother that if he was really child focused, in order to ameliorate the children’s apprehensions he would have greeted Mr F warmly and shook his hand and greeted Mr F’s son K warmly. That to a certain degree is counsel of perfection and probably expecting too much of the father. The father in oral and written evidence indicated that he had expressed to the mother that he would be willing to meet Mr F at an appropriate place, for example one of B’s basketball games. I take into account that Mr F arrived without forewarning. I accept that the father perceived that the children were panicky when they arrived at his front gate and were aware that Mr F was behind them. Although I do not need to make any positive findings one way or the other, it is likely that the father’s reaction when taken by surprise was not entirely the result of his perception as to the demeanour of the children, but also related to lingering (and possibly yet unresolved) emotions that he carries arising from the breakdown of his relationship with the mother. Whilst counsel for the mother makes the point that the father could have reacted in a far more child-focused manner by warmly meeting and greeting Mr F (thereby allaying any apprehension the children might have had), equally it could be said that the mother and Mr F who had been together for some significant period but had not yet arranged a formal introduction between the father and Mr F, could have more sensitively predicted the awkwardness that they were creating. Mr F’s attendance at the father’s property was unannounced and unexpected by the father.
I accept the family consultant’s evidence that this is an isolated event and should not be elevated to an event of any significance. The father might have handled this event differently, although in the dynamics that existed at that time and given the circumstances in which he was confronted, I accept that the father dealt with it in the best way he could. Counsel for the mother criticised the father for not acknowledging during the hearing that he could have dealt with this event in a better way. That is not a criticism of any significance.
The text messages when B went to her mother’s home in September 2012
On 16 September 2012 B was with her father and due to go back to her mother. She was showing some resistance in doing so. The father returned B.
The father annexes to his affidavit filed 19 June 2014 (annexure GM4) text communication between B and her father on that evening after B had gone to bed in her mother’s home. Because of the criticism that it has drawn, I set it out in full:
[B] (this message was accompanied by a large number of emoticons) [Mr F] is here there are pritty (sic) much going to start dancing in a second…face time please…love you…miss you already (sic)
[F] Are you okay B
[F] Are you ok
[F] B are you there?
[B] I’m in bed I can’t message
[F] Yes you can,
[F] Are you ok, please don’t cry
[B] I’m scared I want u
[F] FaceTime me
[B] But really I am in bed an supposed to be asleep (sic)
[F] I don’t want you to be scared, you should not have to feel like this
[F] Do you feel a bit better, in your bedroom now
[F] Sleep Well baby. I will call you in the morning
[B] Noooooo
[F] What’s wrong
The text messages have to be read with paragraphs 40 and 41 of the father’s affidavit to give the text messages context:
40. On 16 September 2012, just before I was to return the children back to [Ms Morton] following the children’s time with me, [B] said to me:
“Daddy I don’t want to go back to mum’s house. Her boyfriend [Mr F] [referring to [the mother’s] new partner – who is [the mother’s] current partner …] is always there and I feel real uncomfortable.”
I said to [B]:
“We spoke about this – you should not feel uncomfortable with it.”
I also encouraged [B] to return to [Ms Morton] and said:
“I want you to return and go home to your mum’s house” and “If there is anything wrong please call or text me.”
]B] said:
“Daddy…please…I don’t want to go there to mums.”
I said to [B]:
“Please, I would like you to go back to your mum’s house. You can call me and let me know how you feel after you get there. If you still feel uncomfortable I will speak with mum and see if you can come back and be with me for the night until you feel better, but please, please do this for me first.”
I returned the children to [Ms Morton’]s house at around 6:30pm.
41. [B] telephoned me a short time later and sounded as if she was crying. She sounded very upset and said to me:
“Dad I don’t want to stay here tonight…I want to be with you please…”
[B] also sent me a test message which said:
“I am scared. I want you [dad]”
[B] also said:
“Mum told me to just go to bed and sleep” and “Mum said I could not go back to you tonight even though I told her you said you would speak to mum and if I did not feel comfortable here.”
I accept that B was apprehensive about going to her mother’s place on this occasion. Mr F had only recently commenced to stay overnight in the mother’s household. I accept the father appropriately reassured her and tried to encourage her to go and did get her to go. I accept that it was B who initiated the text communication by sending the first text to her father and that the father, via text and telephone call, attempted to diffuse what might otherwise have been a situation of high emotion for B. Counsel for the mother criticised the father for not talking to the mother on the telephone and alerting the mother to the difficulties the father was having with B’s attitude about being at the mother’s house. I accept the family consultant’s view that that may have in fact only escalated things.
The family consultant said one must remember this happened about two years ago and the family consultant said that she was pleased to see that the father encouraged B to go back to her mother’s home and was being supportive, paying attention to her feelings, whilst also supporting the parenting arrangements. The family consultant was mildly critical of the father saying to B “you should not feel like this” as it might have implied to B that the mother was doing something wrong by having Mr F in her house.
The family consultant concluded, and I agree, that the father did the best he could in the context of what had happened.
The father’s written evidence is the mother telephoned him the next day and she said “I recognise what you were trying to do with B last night.”
The father interfering with the mother’s parenting
During cross examination, the father was asked questions about an occasion when D telephoned the father from the mother’s home saying that she wanted him to come and get her because the mother was making her eat potatoes. The father suggested to D maybe she could ask her mother to have more beans or peas instead.
The father did not initiate this contact with D; he would have had little appreciation as to the context which caused D to make the call; he could have perhaps more directly supported the mother but I am unable to conclude that this is an example of the father attempting to interfere with the mother’s responsibility for making day to day decisions whilst D was in her care.
Dance shoes
On 21 October 2012 B sent a message to the mother from the father’s phone with a list of items she needed for a dance recital the next day. The mother responded saying she had most of the items at home except the black dance shoes. The mother indicated she was going to get B’s dance shoes that week coming and the father replied to that text message saying “well, get them today then.” The mother says she understood that the father was saying “we’ll” get them today but the father replied “not us, you get them.” The mother, in her affidavit, refers to this as a “text war”. Annexure W to her affidavit is a full copy of the texts.
Counsel for the father submits that that email chain is innocuous. I agree. Part of the problem seems to have been a lack of appreciation by both parents that B was involved in a full dress rehearsal. This so-called “text war” seems to end in the parties satisfactorily negotiating a solution to the problem.
The father assisting B with homework over the telephone
On 18 June 2013 the mother was with the children at their swimming lessons and received a text message from the father asking B to call him. B rang the father when they returned home. The mother says she was under the impression B was ringing to say ‘goodnight’ and after about five minutes she called upstairs to B saying it was time to get off the phone because she had homework to do. B called out to her mother saying “I’m doing my 9 times table with Dad”. The mother replied “I understood we were doing your homework together. Please get off the phone.” When the mother went upstairs B was teary and agreed she felt like she was in trouble because she had done her tables with her father. The mother says she told B she wasn’t in trouble and that the mother and the father needed to communicate better. The mother states in her affidavit that she does not appreciate the father doing homework with B during the time B is with her. The mother feels that the father is seeking to undermine the mother’s authority with the children. During oral evidence the father said he did not have this intention. The mother annexes to her affidavit the text messages that flowed between the parties following this incident. In her message to the father, the mother indicated that in the future the father would need to communicate with her about involvement with the children whilst they were in her household and makes the comment that “protecting them is my priority”. The father reacts in the text in response by pointing out that he had placed no restrictions on the mother’s ability to communicate with the children when they were with him and he objects to the mother placing that restriction on him. He also reacts to what he believed was an inference that he did not protect the children. The father asserts he had been helping B with maths homework when she was with him and that that had helped her considerably. Whilst these two text messages demonstrate a level of angst over what had happened, it does not appear that there has been any recurrence since June 2013.
The text war
The family consultant records that C seemed a little preoccupied at the date of the interviews in February 2014 with an incident of conflict, (a “text war”, to use C’s term), between her parents during the recent holidays that she thought was started by a text she sent about school shoes to her mother when with her father. The family consultant records C said, “I felt ashamed because I thought I had started it”. Counsel for the mother submitted that I would place some weight upon this incident given the importance it seemed to have in C’s mind at the time she spoke to the family consultant.
Given the number of questions that were asked about the text exchange between the parties on 24 and 25 January 2014, it is convenient to set it out in full. The children had been with their father for part of the Christmas holidays and were due to go back to their mother after this weekend:
Text from mother to father Friday 24 January @ 1:50pm
[M] [Father’s given name], Can you please get the girls their school shoes this weekend as we won’t have time before school goes back next week. And can you please let me know what time you are dropping the girls off on Monday, thanks [Mother’s given name]
[F] Yes we will try and get the shoes for them. The children will be returned to you at 9am.
The following day C asked the father what they were going to do that day and the father told her they were going to get school shoes. C replied “why didn’t Mum get them?” and “why do we have to get them today? We don’t have much more time left with you during the holidays.” The father told C the mother wanted the father to get the shoes before school started.
Text from [C] to her mother Saturday 25 January @ 7:42am
[C] Morning mum why does dad have to get the school shoes
[M] Morning [C], Cause you need them to start your new school year ...Your old ones are in the bin remember, your feet grow and you need a new pair every year. We will not have time to get them Monday or Tuesday before school Wednesday. Love you xx
The mother then sent a text message to the father in the following terms:
Text from mother to father Saturday 25 January @ 7:48am
[M] [Father’s given name], If getting the school shoes is a problem for you (as [C] has just text me, asking why you need to get them) they can wear their sandshoes first week back, up to them. [Mother’s given name].
[F] As I said in my text message of yesterday, we will get them today. It was [C] herself complaining this morning about us having to get them today, so maybe you should not assume otherwise.
The father then spoke with C asking her if she texted her mother. C said that she did and that she asked her mother why her father had to get them. The father told C she should not have sent a message to her mother.
The following text exchange then took place between the father and the mother:
Text from mother to father Saturday 25 January commencing 12:04pm
[M] [Father’s given name], don’t get upset with me, I was only trying to communicate with you and I was never assuming anything at al. your text yesterday was “Yes we will try and get the shoes for them. The children will be returned to you at 9am”. So that is you will “try” not yes I will get them with the girls...So no not assuming anything....and thought as much re [C] not wanting to get them so I gave you an ut and I would have taken them. So don’t be so defensive [Father’s given name], I was assuming or making this a bit deal. [Mother’s given name]
I was not assuming or making this a big deal meant to read.
[F] Do not make any assumption that I am upset, you have no idea and do not need to make accusation that I am defensive. I was simply explaining that [C] complaint this morning was from herself. I said “try” yesterday because if they don’t have their size in stock I cannot possible [sic] get them at such short notice.
[M] Well pick up the phone and call me and use your voice to speak to me and I won’t read your texting the wrong way [father’s given name]. Did you assume I was getting their school shoes? Goes both ways [father’s given name] lets try and communicate this year for the girls sake.
[F] [Mother’s given name], please stop with your unnecessary accusations. You have started this thread of text messages to start with asking me to get the shoes for them as you have said that you have not enough time. If you had thrown the shoes out, then maybe you should have thought about communicating this. You can reimburse for the cost after I have paid for them.
[M] No I won’t be [father’s given name]. You can start paying your way with our girls, as the money you pay me for our girls puts food on our table only for the month.
[F] So you know, we did manage to get shoes for all the children today.
In the mother’s affidavit she says that she telephoned the father at 11.30am. The father agrees there was a telephone call. He says the mother said “just calling to hear your attitude.” The mother says she said “I am ringing to hear your tone of voice to know what I am assuming is correct about your tone when I read your texts. Anyway, I wont be paying for the girls’ shoes, you can start contributing to the girls clothing and schooling.” The mother says the father replied “I do contribute to the children. How do you think you live and on whose money do you think you’re living on. I will be taking the cost of the shoes out of your next child support.” The father admitted in oral evidence that he did say he might take it out of child support. The father did not agree with counsel for the mother that this may be a provocative thing to say to the mother.
Counsel for the mother asserts that the father’s response in the text exchange was offensive and aggressive and that it did the father no credit that he was not able to see that he was being provocative in relation to the school shoe discussion in saying to the mother that if he brought them, and she was not going to pay half the cost, he was going to deduct the amount from child support. I accept that is so to some degree.
However the mother is not blameless in the exchange. She starts by assuming that the father had made some negative comment to C about getting the shoes on the last weekend he had the children for the school holidays. I am satisfied that he did not make any such comment to C. The mother was the parent who wrote the text message which contained the first provocative statement (namely, that the children could wear their sandshoes for the whole of the first week back at school). The father conceded that he reacted to the tone of that text message and admitted that some of the communication was in the heat of the moment and that he had become somewhat frustrated that C was “playing off” one parent against the other.
It is somewhat ironic that in this exchange the mother exhorts the father to pick up the phone (as she eventually did) and call so that she “won’t read [his] texting the wrong way”. That is exactly what the father is now doing. It is currently the mother’s case (as discussed elsewhere) that that new style of communication by the father with her is temporary and only for what the father believes is his current forensic advantage in this hearing.
I accept the submission by counsel for the father that when looked at objectively, this series of text messages is reasonably innocuous. There was a misunderstanding that became slightly heated on both sides, remembering that this was one of the very few incidents that have been highlighted by the mother in an attempt to demonstrate simmering tensions between the parties. It is not an incident upon which I place any great weight.
The passport issue
During cross examination of the father, counsel for the mother pointed to an example of an occasion where the mother felt the father was being sarcastic and sullen in his tone.
On 8 July 2014 the father and children were in the car returning from a trip to L Town when the mother received a telephone call from B. The mother asked B whether the mother could speak to the father and then asked the father if he could complete his “bit” of the children’s passport application. The mother asserts the father replied “what do you mean my bit” and then “what do you need these for”. The mother indicated that the maternal grandmother intended on taking the mother and children on a cruise at the end of 2014 to Country M. When the children and father arrived at the mother’s home a while later, the mother gave the father the application and told him that she had left out the part about an emergency contact and that the emergency contact could either be the maternal grandmother or the paternal grandmother. The mother says the father replied “well who do you think could be more reliable?” The mother took this comment as the father putting the maternal grandmother down. She then said “excuse me” and asserts the father said “who do you think would me more reliable? Who do you think will answer the phone?” The father ultimately said that his mother should be put down because the children were travelling with the maternal grandmother. When the father returned the applications he said he had reflected upon the fact that the passports would not just be used on the upcoming trip with the maternal grandmother and that he said to the mother that she could put her mother as the emergency contact if she wished. The mother says this is an example of the father over the last two years as being “sullen, sarcastic and curt.”
In his affidavit in reply, the father denies the conduct and words attributed to him and asserts that the mother has inferred certain things (including the father’s intentions, manner and the like) from what the father says was a very straight forward and cordial conversation.
During oral evidence the father disagreed that he was sullen or sarcastic or curt. He said he did not think he was acting rude and did not mean anything derogatory. The father agreed the mother took this incident as the father being sarcastic but he said he did not see how his behaviour could be interpreted in that way.
I am unable to conclude that the father is generally, often or even rarely sullen, sarcastic and curt in his interaction with the mother.
ABILITY OF THE PARTIES TO COMMUNICATE AND AGREE
The father’s developed attitude to communication
As mentioned, it is common ground that the father, since the first event before myself, has adopted the modus operandi of picking up the telephone and ringing the mother rather than texting her. The mother says that this has always been in a cordial and child-focused manner (there is no indication that the father attempts to use it as an opportunity to engage the mother about issues between themselves personally or otherwise). The mother however places a sinister forensic motive on the father doing this and asserts that it is her opinion that he will not be able to continue or not continue to do that once a result of these proceedings is known. The family consultant however is of a different view. She opined that it would be inappropriate to place a sinister motive on the father’s changed behaviour and that it would be open to the court to see his improved communication as simply a progression from where he was at the date of separation to where he is today in terms of being able to engage with the mother in a child focused way.
The future of the children’s proposed high school
The mother submitted there had not been final agreement as to who would pay for fees for the high school to which the eldest child is due to attend in 2016, and that consequently schooling at the chosen high school may be in jeopardy. The court will at some point make a determination in relation to the mother’s application under the Child Support (Assessment) Act 1989 (Cth) for a non-periodic payment in relation to high school fees, and on balance it is likely that those fees will be attended to by one means or another, either by way of agreement or court order.
It seemed otherwise agreed that there has been no difficulty at all in terms of the transfer of school uniforms, school gear, and homework between the two households in the arrangement that has existed since the beginning of 2013.
It was agreed that both of the parties are actively involved in the school.
iPad mini
The mother points to the fact that the parties had a disagreement about the children’s use of their iPad minis and whether or not those devices could be connected to email access (the children are otherwise connected through their iTouch’s). The father made a request to the mother that the iPad minis be connected. The mother said she didn’t want it to happen. The father has respected her wish. Whilst the parties did not agree on that issue, the father respected the mother’s right of veto. It is difficult to see how that constitutes a failure to agree on a future course of action. The mother pointed to the fact that the father again sought an order in relation to the iPad mini in his outline of case document, however, in the face of the mother’s continuing objection, an application was not pressed in any way.
Not being able to agree about equal time
The mother points to the parent’s failure to agree on the father’s proposal for equal time as an example of a failure in their communication and ability to reach a consensus position. As I indicated during submissions to counsel for the mother, I think that that is a very circular argument. It could not be the intention of the legislature that an application to the court for equal time could be defeated by the submission that the parties had not been able to agree on equal time.
CONCLUSION ABOUT TENSIONS AND COMMUNICATIONS
The few interactions that have been identified as detailed above have to be seen in the context of many face to face and electronic exchanges between the parties and many movements of the children and the parties’ dogs from one household to the other in a seamless way and without any angst or confrontation over a period of two and one half years.
Counsel for the mother submitted that the parties’ communication turns really nasty when there is money involved. That in my view is overstating the effect of the evidence on those rare occasions when the mother complains that there has been tension over money.
Counsel for the mother during final submissions submitted that there is the possibility in the foreseeable future for there to be a flash point between the parties over issues in respect of money. At the end of the day however, the history is that the children have not missed out on anything that they have physically needed since separation and the father has been primarily responsible for funding those needs. I am mindful of the fact that the parties are yet to resolve their property settlement. The mother asserts that after separation the father disposed of significant assets to his family. The father denies that he did anything inappropriate. There is no doubt that until financial matters are resolved they will be the source of tension between the parties.
Whatever “simmering tensions” there has been between the parties, it has not at any time frustrated the ability of the parties to act in a businesslike manner with one another as parents for the purposes of implementing their current shared care arrangements.
EVIDENCE OF THE FAMILY CONSULTANT
The family consultant recommends that the children continue to live with the mother and spend time with the father as in the current arrangements.
In her written report, the family consultant provides the following rationale for that recommendation:
33. It is likely that the children would thrive in either of the parenting arrangements proposed. The current arrangement allows for the children to have significant and substantial time with each parent and has apparently carried the children to where they are at present; as secure, loved and capable children. [The mother] impresses as a well-organized mother who supports the children’s relationship with [the father]. She gives no sense that facilitating the children being with [the father] is “too hard” or not important. [The father] impresses as a dedicated father who loves the children and has made them his priority. However, his parenting of them has not been tested in an equal time arrangement, an arrangement without [the mother] being in the lead role as organizer based around the school week. This assessment finds that the children would continue to benefit from [the mother] being the main carer while she is available to be a full time parent at home.
34. On fine balance, while both parental proposals would most likely be sustainable and suitable to the children, there is likely to be more risk in changing the arrangements than in them remaining as they are. An equal time arrangement could be considered again if and when the parents circumstances change into the longer term future.
The family consultant goes on to say that an equal time arrangement could be considered again if and when the parties’ circumstances change into the long term future.
It goes without saying that the court is required to take into account the possible effect of any change in current circumstances upon the children. There is no evidence at all that would indicate that the children would not be able to comfortably deal with a change from five nights to six and then from six nights to seven with their father. Based upon the uncontroversial evidence that movements between the two households at the moment are almost totally seamless, there in fact would be no more movements between households than currently exist.
It is the mother’s case that she is the driving force in organising the children’s school week.
Counsel for the mother identified as a risk of moving to an equal time arrangement the effect upon the children of losing the mother’s ability to be at the helm of organising school activities for them.
Counsel for the mother also referred to an SMS at page 120 of the father’s affidavit in which the mother makes an inquiry of the father as to what arrangements he wanted to make for Father’s Day, as an example of the mothers organisational and managerial role.
Counsel for the mother asserted that the emails attached to the father’s affidavit would demonstrate that the mother played the primary role in organising and managing the children’s arrangements during the school week and that most of the emails were initiated by the mother. One example referred to was arrangements in relation to B’s orthodontic treatment which were organised by the mother, although the father took her to one of the consultations with the orthodontist. The mother is the driving force in relation to music lessons and counsel for the mother pointed to the fact that after separation when the mother wanted to enrol the children in music lessons the father said “if you want the girls to play music, it is on you.” The father indicated he said this because he had explained to the mother that at that time they could not afford the lessons. The father said the mother did not listen to him and he formed the view if she wanted to unilaterally enrol the children she could pay for it. Since that time however, the father has been encouraging of the music lessons and of the children practising their instruments. The parties have been able to agree on other extracurricular activities and since late 2012 the father has paid one half of those activities (excluding piano).
I find that the father would continue to ensure the children would attend all extra-curricular activities and the implication that the father is significantly less capable than the mother in organising the children’s school and extra-curricular activities is without foundation.
The father was not challenged on his evidence that he currently is involved in laundering uniforms under the current arrangements. The parties also seem to have a highly organised system for transferring school work and other items the children might need for their schooling week, with the father commenting that the children to some degree are responsible enough to remember themselves that they need to take certain things with them from one household to the other. If an item is left behind both parties agreed they have no problem arranging for the items to be collected by or dropped off from one another.
I do not consider the fact that the mother may be slightly more involved in the children’s school and extra-curricular activities a very weighty consideration.
In cross examination, the family consultant was asked to identify the risks arising from the fact that an equal time arrangement had not been tested but I find she was not satisfactorily able to do that and the family consultant appreciated her difficulty.
Counsel for the father put to the family consultant that if the court found, firstly, that the father was an exemplary parent, secondly that the father had the time to fully devote himself to parenting during the week that he would have them on his proposal, that the children would thrive. The family consultant agreed with that proposition.
During oral evidence the family consultant sought to buttress her opinion that the mother had a lead role as organiser based around the school week with the notion that the family consultant had in the back of her mind that the mother was the children’s primary attachment figure and that there was a qualitative difference in the children’s relationship with each parent, with their relationship with their mother being superior.
That opinion does not emerge from the family report. At paragraphs 28 and 29 of her report the family consultant says:
28. When observed with [the father], the children were spontaneous and energetic. They appeared to delight in [the father’s] company and, immediately on his entering the childcare room, they ran to him and smiled while quickly gesturing to him to admire their craft works. [The father] provided the girls with affirming, positive comments and asked them about school. In a flurry of conversation the children brought him up to date on their teachers and with which friends were in their respective classes at school. The children were particularly attentive to their father and appeared not to feel the need to jockey for his attention. They appeared confident that they could talk with him both as a group and individually. [The father] was quietly spoken, child focussed and fully attended to the children. Their relationship appeared warm, close and satisfying.
29. When observed with [the mother], the children behaved similarly to when with [the father], greeting her affectionately and engaging her in their busy craft activity. [The mother] came to the observation having thorough knowledge of how the girls’ school year had started and she did not appear to need to “catch up” in the way that [the father] needed to. The feature of this observation was a physical closeness between [the mother] and the three girls, such as them alternatively sitting on her knee. They shared a continuous stream of jokes. The children were cooperative, spontaneous, creative and dynamic in their conversation and play when with [the mother]. [The mother] was child focused, even and attentive towards each child. Their relationships appeared warm, close and satisfying.
As highlighted during cross examination, in her written report the family consultant has used identical words to summarise the children’s relationship with both their parents. I find that both the parties are child focused and attentive to the children’s needs. The children are confident and outgoing with each parent. There is on the face of the report no discernable difference between the quality of relationship between the children and either parent.
Paragraph 30 of the family report is in the following terms:
The [Morton] children appear to be developing happily and well in the care of [the father] and [the mother]. Indeed, the children impressed as confident, well cared for and loved to the point that their spontaneity and individuality were features of the Child Responsive Programme and Family Report assessments. They have loving and stable home environments, continuity in relationships with both parents and no major relocations involving change of home locale or school. The parents, by all observations and accounts, are intelligent, well-organised individuals who have the children’s needs as their priority.
There is no mention made in paragraphs 28, 29 or 30 of there being any qualitative difference in the relationship of each of the children with each parent. Nor is there any mention of any qualitative difference between the parties in respect of their ability to parent.
At paragraph 33 of the family report, the family consultant opines:
It is likely that the children would thrive in either of the parenting arrangements proposed.
The family consultant gave the impression in the witness box that she was attempting to reanalyse why it was she had made the recommendation that she had. I accept that she was entitled to do that but the weight that I can place upon any asserted qualitative difference in the parenting relationships between each of the children and their respective parents is minimal. The fact is that both the parties are exemplary parents.
The family consultant agreed that there was no indicia contra-indicating the notion that an equal time arrangement was reasonably practicable.
Also missing from the family consultant’s report was the emphasis in the family consultant’s oral evidence upon the fact that the mother being primary carer of the children throughout the marriage in circumstances where the parties fulfilled traditional roles; the mother in the role of homemaker; the father in the role of breadwinner.
When the 2006 amendments were made to Part VII Family Law Act 1975 (Cth) (“the Act”), a new s 60CC(4A) was inserted to make it clear that the court was to particularly focus on post-separation parenting when considering the fulfilment of parental responsibility as a relevant matter. The Explanatory Memorandum to the Bill said, “the Government recognises that the main period of interest for the court is the post-separation period, as parental attitudes and behaviour in relation to responsibilities may change on separation”. Although s 60CC(4A) was repealed in 2012 (because of the fear that the “friendly parent” provision had an impact in discouraging disclosures of family violence and child abuse), nonetheless the Explanatory Memorandum to the 2012 amendments noted that previous considerations under s 60CC(4) and (4A) could be considered under paragraph 60CC(3)(m) of the Act. The clear legislative intention was that just because two good parents had fulfilled particular roles during their relationship, the parent who had not been the primary caregiver was not disenfranchised from taking up a more active role in the children’s lives after separation.
In the circumstances of this case, the fact that the parties played traditional roles during the period that they lived together is not of any weight.
Counsel for the mother submits that I would place significant weight upon the recommendation of the family consultant who has seen the parties and children on two occasions five months apart and, who after robust and lengthy cross examination, did not waiver from the recommendations she had formulated in the family report.
Counsel for the mother submitted that the court would accept the family consultant’s additional oral evidence about why she made the recommendation given the way in which she gave it and the fact that she had not included a number of other things in her report.
In this case I have certain advantages over the family consultant. Both parties filed lengthy trial affidavits (albeit on limited defined issues) and the father filed an affidavit in response which joined issue in respect of matters which were not agreed. Neither party sought the family consultant read any of this material. I have also over a period of two days seen the parties tested on their evidence.
The family consultant steadfastly stuck to the recommendation that she made whilst acknowledging that the court might easily make findings that would support a result as proposed by the father.
The family consultant conceded that it was possible for the court to come to a result that was different from her recommendations but still adopt a proposal in which the children would thrive.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Act 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.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
The parties have agreed that an order should be made for equal shared parental responsibility and I propose to make that order.
Accordingly, the provisions of s 65DAA(1), s 65DAA(2) and s 65DAA(5) of the Act are enlivened and are in the following terms:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), 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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), 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;
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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
....
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.
In MRR & GR (2010) 240 CLR 461, the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[1]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[1] See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 [130]-[131] per Gummow J; [1999] HCA 21
In Goode & Goode (2006) FLC 93-286 the Full Court discussed the meaning of the word “consider” as it is used in ss 65DAA(1) and (2) of the Act:
5. What does “consider” mean?
57. This question arises from what follows from an application of the presumption of equal shared parental responsibility in s 61DA. When any parenting order is made for equal shared parental responsibility then the Court must apply s 65DAA. This requires the Court to consider the child spending equal time or substantial and significant time with each parent in certain circumstances. The question therefore arises, what does “consider” mean. [emphasis in the original]
58. In Aboriginal & Torres Strait Island Affairs, Minister for & Norvill v Chapman; sub nom Tickner v Chapman (The Hindmarsh Island Bridge case) (1995) 57 FCR 451; (1995) 133 ALR 226 the Full Court of the Federal Court extensively examined the meaning of the word “consider”.
59. The appeal was part of litigation over the Hindmarsh Island Bridge development. The appellants challenged pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) both at first instance and on appeal the decision of the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs to make declarations concerning the development site. The appellants asserted the Minister had failed to consider a report prepared to determine whether or not the declaration should be made.
60. Relevantly, Black CJ held at 462:
The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of”. Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
61. Burchett J held at 476-477:
What is it to “consider” material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others: cf Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551 at 568–569. It is his task to evaluate them, a task he can only perform after he knows what they actually are. In a case involving a board which had a duty to “consider” a report, Laskin J, speaking for the Supreme Court of Canada, said: “Certainly, the board must have the report before it”: Walters v Essex (County) Board of Education (1973) 38 DLR (3d) 693 at 697. When Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30–31 conceded that the Minister, in the circumstances of that case, was not obliged “to read for himself all the relevant papers”, and that it “would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department”, he also made it plain that the summary must “bring to his attention” all material facts “which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial”. That was in the context of legislation expressly empowering the Minister, as Mason J pointed out at 46, to delegate his powers and to refer matters to another authority.
62. Kiefel J held at 495-496:
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else’s view of them, and the legislation has required him to form his own view upon them.
63. In Tickner, the Full Court affirmed the decision of O’Loughlin J at first instance (Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316; (1995) 133 ALR 74) that the Minister had failed to properly consider the report. O’Loughlin J’s comments at first instance are of relevance (at 369):
The verb “consider” is a common word used daily in language and in documents; yet no counsel was able to refer to any judicial determination of its meaning. The Macquarie Dictionary and the Shorter Oxford English Dictionary ascribe to it a variety of shades of meaning giving, respectively, as their first definitions “to contemplate mentally; meditate or reflect on” and “to view attentively, to survey, examine, inspect”. American and Canadian dictionaries give similar general descriptions: “advert to, analyse, appraise, assess, etc” (Legal Thesaurus 2nd ed: William C Burton) and “to examine, inspect; to turn one’s mind to” (The Dictionary of Canadian Law: Duke Low & Niese).
64. While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).
In E and S [2010] FCWA 3 at [40] to [50], Thrackray CJ discussed paragraph 64 of Goode and the guidance given by the Full Court that the use of the word “consider” in s 65DAA(1) and (2) of the Act suggests “a consideration tending to a result” and “the need to consider positively”:
Controversy concerning the interpretation of s 65DAA
40 In a paper delivered at the National Family Law Conference in Adelaide in April 2008, the eminent commentator, the Honourable Professor Richard Chisholm, expressed concerns about the drafting of s 65DAA and the Full Court’s analysis of that provision in Goode, in particular the reference to s 65DAA as suggesting “a consideration tending to a result”. In order to appreciate Professor Chisholm’s argument, it will be helpful to set out s 65DAA(1), which I have earlier only paraphrased:
(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.
41 Professor Chisholm expressed his concerns about this subsection and the Full Court’s analysis in Goode as follows [footnotes omitted]:
The drafting problem is this: since the child’s best interests are the paramount consideration, once the court has found that a particular order (here, equal time) is in the child’s best interests, and is reasonably practicable, so far as I can see the court would obviously go ahead and make that order. Doing anything else would be making an order that was not best for the child, and doing that would seem to be contrary to the principle that those interests are to be the paramount consideration. The word ‘consider’ is therefore mis-used in paragraph (c), because it suggests that there remains something else to be taken into account in deciding whether to make the order. The subsection should have stopped before paragraph (c).
The problem is not quite solved by the Full Court’s analysis in Goode. The Full Court quotes some perfectly appropriate authorities on the meaning of ‘consider’ – they contain no surprises. But then it says that the meaning of ‘consider’ in those decisions is ‘not entirely apposite to the meaning of the word in s 65DAA’. This is said to be so
because the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, of the need to consider positively the making of the order, if [the conditions in paragraphs (a) and (b) are met.]
The problem with this, I think, is that it treats the word ‘consider’ as having the same meaning in all three paragraphs. What I think the Full Court should have said is that the authorities cited were entirely applicable to the meaning of the word ‘consider’ in paragraph (a) and (b). As to paragraph (c), I think it should have said that despite the word ‘consider’ in paragraph (c), once the court has found that an order for equal time is in the child’s best interests, and is reasonable practicable, since the child’s interests are paramount, the court will ordinarily, if not inevitably, make that order. It is in this sense, and this sense only, that it can be said to be ‘tending to a result’.
The reason I think it worth bothering with this apparently pedantic point is that if the Full Court’s remark about ‘tending to a result’ is not understood as confined to paragraph (c), it could be taken to indicate that s 65DAA as a whole tends towards orders for equal time; or, in other words, that it creates something like a presumption favouring equal time. I am confident that the Full Court did not mean this, since such a statement would be quite wrong. It is crystal clear that the court’s obligation under the section is, essentially, to pay attention to whether equal time would be in the child’s interests – and, if it is, then of course to make the order. ‘Consider’, in paragraphs (a) and (b), means precisely this, as it does in the administrative law cases cited by the Full Court. The quote from the Full Court would be correct if their Honours had said that the administrative law definitions were not apposite to the meaning of the word ‘consider’ in s 65DAA(c). I suggest that this is what the Full Court must have meant to say.
42 I would venture, with utmost respect to Professor Chisholm, an alternative approach to the interpretation of s 65DAA, which would have the benefit of allowing the word “consider” to be interpreted consistently wherever it appears in the section. As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 [my emphasis added]:
I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.
43 I acknowledge these words may be treated as “the counsel of perfection” (as suggested in the discussion in Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed., Butterworths, Australia, 2001 at [4.5]), and that it is legitimate for a court to give a different interpretation to the same word, even when construing the words of just one section of an Act. Nevertheless, in my view, an approach which allows the same meaning to be given to the critical word “consider” in all of the many places in which it appears in s 65DAA is to be preferred over an approach requiring differing meanings, provided the interpretation is consistent with the objects of the Act and the paramountcy provision.
An alternative approach to s 65DAA
44 The interpretation I propose for the word “consider” achieves the objective of consistency and also sits comfortably enough with the formulation in Goode concerning “the need to consider positively” the making of certain orders. I accept, however, that it may not sit quite so comfortably with the alternative formulation proposed in Goode of “a consideration tending to a result”.
45 My interpretation of “consider” stems from asking two questions: Why would Parliament merely require the Court to “consider” making an order that is both in the best interests of a child and reasonably practicable when the Court’s fundamental obligation is to make orders that are in the best interests of the child? Why not instead require the Court to make such an order? [emphasis in original]
46 The answers can be provided by recognising that there may be a number of possible outcomes that could be seen as promoting the best interests of the child and being reasonably practicable. As was said in the High Court in CDJ & VAJ (1998) 197 CLR 172 (per McHugh, Gummow and Callinan JJ) at [152], “It is a mistake to think that there is always only one right answer to the question of what the best interests of the child require … best interests are values, not facts.” Life is full of occasions when two different but tempting scenarios present themselves, with what may appear to be an equal measure of “pros and cons”. When faced with such alternatives, the competing factors are usually weighed before identifying those that ultimately make one outcome more appealing than another. Sometimes the final decision is made on the strength of nothing more than a “gut feeling” on the part of the individual, couple or family making the decision. On other occasions, it will be a matter of deciding whether short-term or long-term advantages are to be given greater weight. [emphasis in original]
47 The judicial officer allotted the task of making decisions for families employs a process of reasoning which arguably is not dissimilar to that employed by families when weighing up the benefits of competing scenarios. One important difference, of course, is that families might choose the option that is seen as best for the family as a whole (or sometimes just for one member of the family), whereas the judicial officer must treat the child’s best interests as paramount.
48 The judicial officer will carefully assess all of the available outcomes and select the one that stands out from the others. Selection of that outcome does not mean that the other options were not in the child’s best interests, it just means that the option which found favour was considered the “best” available. Having undertaken this process and come to a decision, the judicial officer will have discharged the legislative requirement to “consider” making all orders that would have been in the child’s best interests.
49 This approach to the interpretation of “consider” can be best understood when applied to that range of cases in which there appears to be only a marginal difference between the competing proposals. Take, for example, a dispute as to whether a child will attend one excellent school instead of another excellent school. Or a dispute about where a child will live, when both parents are outstanding parents, but a shared care regime is impracticable. It would be straining the language in such cases to say that the proposal which was rejected was not in the child’s “best interests”.
50 Discussion of the legislation has hitherto proceeded on an unstated assumption that there can be only one outcome that is in a child’s best interests. If indeed such an assumption was correct prior to 2006, the way in which Parliament has chosen to amend the legislation requires reassessment of the language of the statute.
The passage quoted by Thrackray CJ from CDJ & VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ) has been taken somewhat out of context but, with respect, I agree with his Honour’s re-application of some of the words used by the High Court in the current context of a case such as the present. I consider that it is possible for there to be more than one right answer to the question of what would be in the best interests of the children. I need to consider whether in this case the marginal differences between competing proposals of the parties means that there is more than one right answer to that question.
In the well-known passage about the legislative pathway, the Full Court in Goode said at [82(g)]:
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable
The Full Court in Korban & Korban [2009] FamCAFC 143 said at paragraphs [83] to [86]:
83. Counsel for the mother submitted that, correctly interpreted, sub-paragraph 82(g) of Goode involves a court only making an order for equal time if there are no disqualifying factors. We reject this interpretation. We consider the interpretation puts a “gloss” on the plain wording of s 65DAA(1) and on the guideline.
84. When there is an order for equal shared parental responsibility, or a court proposes to make such an order (as was agreed in this case) the legislation obliges a court to consider:
·whether the child spending equal time with each of the parents would be in the best interests of the child; and
·whether the child spending equal time with each of the parents is reasonably practicable;
and if it is, consider making such an order. [emphasis in the original]
85. The legislature has provided a framework in s 60CC for determining best interests. That framework requires a court to consider many factors relevant to a child’s best interests. The consideration of best interests involves an assessment of all the evidence presented and the making of factual findings. Some of those findings about one parent will demonstrate positive attributes which will benefit a child, other findings will highlight deficiencies or factors which are not likely to promote a child’s best interests. It is on these factual findings that a judicial officer will assess whether equal time is in a child’s best interests. Having weighed such factors – both positive and negative – if a judicial officer determines the child’s interests are served by an equal time order and such an order is reasonably practicable, he or she will consider making such an order. If a court, however, determines in its overall consideration the factors weighed dictate the child’s best interests will not be promoted by an order for equal time, then a court must consider substantial and significant time. Although not mandated by s 65DAA, if substantial and significant time is not an appropriate outcome, a judicial officer will consider some other time regime in the child’s best interests, including, in some extreme cases, an order for no time to be spent by the child with one parent.
86. We do not read the guideline in paragraph 82(g) of Goode as suggesting s 65DAA(1) mandates that a court is to only make an order for equal time if there are no disqualifying factors or, put another way, a requirement to consider only factors contrary to a child’s best interests. Nor do we read the section or the guideline as imposing a negative test – to determine that equal time is not in a child’s best interests. The enquiry is a positive one, to ascertain whether equal time is in a child’s best interests. What we understand paragraph 82(g) to suggest is that a judicial officer will, on the basis of factual findings made under s 60CC, in his or her consideration under s 65DAA weigh up whether or not an equal time order is in the child’s best interests and reasonably practicable, and consider making such an order. Only if he or she concludes from that overall assessment and consideration that an equal time order should not be made, move to then consider substantial and significant time.
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(2) and (3) of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.
STATUTORY CONSIDERATIONS WHEN DETERMINING THE CHILDREN’S BEST INTERESTS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The children have and will continue to benefit from a meaningful relationship with both of the parties.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
There are no issues of family violence, abuse or psychological harm.
The additional considerations
Children’s views (s 60CC(3)(a))
The independent evidence about the children’s views comes from the family consultant. The family consultant saw the children for the first time on 12 September 2013. She wrote under the general heading “the children” in the Children and Parents Issues Assessment (“the Issues Assessment”) that:
The children said that they would like to see their father as much as possible.
When making specific comments in the Issues Assessment about B, the family consultant did not mention anything specific about her views. When commenting about C, the family consultant wrote:
She seemed keen to express views that were loyal to her parents and fair. [C] she [sic] said she would like to live in a ‘50/50’ arrangement.
The family consultant said that D (who was then aged five) seemed well attuned to the views of her parents and what parenting arrangements each of them thought best, but “did not express an opinion herself”.
There was some debate during submissions as to what the words “the children said that they would like to see their father as much as possible” meant in the Issues Assessment. It is to be remembered at that time the children had been living during school term five nights a fortnight with their father since the beginning of 2013. The family consultant did not accept in cross examination that all the children in the first interview were expressing the view that they would like to spend more time with their father. I conclude that the expression “as much as possible” should not be elevated to evidence from the family consultant that the children were all saying in September 2013 that they wanted more time with their father during school term than they were then currently having.
In the family report, the family consultant set out the views expressed by each of the children in interviews on 6 February 2014. The family consultant recorded that B (now aged 10):
....remained non-committal about the parenting arrangements, saying ‘I don’t mind just as long as I get to see both of them’. [B] indicated that either of her parent’s proposals would work for her. [B] appeared confident to share as much of her thoughts wishes and her feelings as she thought best within a generally reserved presentation.
In relation to C, the family consultant recorded a view that was consistent with C’s express view in September 2013, namely “she said she wants to live in an arrangement that is ‘fair and even and half/half with each parent’.”
In relation to D’s position in February 2014, the family consultant’s evidence in her written report is a little confusing:
27. [D] (aged 5 years) [sic] presented just as she had in the previous interviews and observations, as confident and assertive. She impressed as having an outgoing personality and particularly advanced language skills. [D] expressed exactly the same wish as she had in her previous interview, that is, to spend “a bit more time with Dad so that I live half and half with Mum and Dad”. [C] [sic] thinks that this would be fair for everyone. On exploration, it was clear that [D] understood what her proposal would mean in terms of weekly routines and changeovers. Despite her wish to live with her parents in an equal time arrangement, [D] said she would also be able to “live with” the arrangements continuing as they are.
It seemed clear from the family consultant’s oral evidence that D had not expressed an opinion in September 2013 that she wanted an equal share arrangement but she did do so in February 2014 and that the reference to C at the beginning of the fourth line in paragraph 27 of the family report was a typographical error and should have referred to D.
The family consultant said she did not explore with D why her view had changed; whether or not it was simple maturation, picking up and identifying her father’s position or becoming aware of C’s position and adopting that or some other reason.
Counsel for the mother referred to the evidence from the father about what happened on 21 December 2013 and his evidence that he thought the children’s anxiety on that day arose out of their desire to protect him. Counsel for the mother submitted that the court could find that D’s current expressed views were motivated by a desire to protect the father. The family consultant did not endorse this hypothesis.
C said to the family consultant that “she is a little scared to let her mother know what happens when she is at her father’s house for fear that her mother may overreact”. This apprehension by C at the age of eight is to be contrasted with the mother’s notion that C is protective of her father. It is of course the father’s case that the mother tends for the purposes of this case, to magnify and exaggerate matters which are otherwise innocuous.
The important part about the expressed view of the children is that those views do not contraindicate an equal time arrangement. I do not place a great deal of weight on the fact that C who is actually aged eight and D who is actually aged six, at the date of the interviews expressed a positive view that they wanted to live in an equal shared arrangement with their father.
Relationships of the children with the parents and other persons (s 60CC(3)(b))
Paragraphs 28 and 29 of the family report are set out above. I find that those paragraphs succinctly summarise the children’s relationship with both their parents.
Extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the child (s 60CC(3)(c))
It is agreed that the father currently has on 400 occasions (apart from three times), been the person who has picked up or redelivered the children on changeovers. The mother agreed in the witness box that on no occasions when there has been face to face handovers has anybody other than the father done it. The father says that there were three occasions when he was moving house where he relied upon the assistance of his mother and his sisters to facilitate the children being picked up or redelivered to school.
I accept the father has significant flexibility in his position in his family business and has a track record of being able to manage his work commitments so that he is available for the children when the children are not at school.
The parties have both taken every reasonable opportunity available to each of them respectively to spend time with the children and participate in decision making.
The parties have both demonstrated ungrudging flexibility in varying each other’s time with the children in a cooperatively and child-focused manner.
Extent to which each parent has fulfilled their obligation to maintain the child (s60CC(3)(ca))
Neither party makes any real complaint as against the other that the other has failed to fulfil all their respective financial obligations for the children.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
When discussing the family consultant’s evidence above, I have concluded that the effect of any possible change on the children moving from five to six nights and then six nights to seven nights with the father is not a weighty matter.
The children are well adjusted and resilient. It is highly unlikely that they would not be able to cope with the change suggested by their father.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
There are no current practical difficulties with communication or expense. The parties live in close proximity to one another and to the children’s school. The children will continue to attend their same school. The parties are able to communicate civilly and effectively about the children. The parties have made numerous joint parenting decisions since separation without any significant dispute.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f))
Overall the parties have similar parenting styles. The history since separation and particularly since the beginning of 2013 when the children have been with their father five nights a fortnight, is one that evidences significant flexibility between both parties and their working together to make arrangements seamless. The mother raises no issues of supervision. Nor does she suggest that anybody other than the father is doing the parenting when the children are living with him.
It was agreed that the mother was currently studying and those studies will continue for the next two and a half years or so when she hopes to have sufficient qualification to re-enter the workforce (the mother’s evidence is that she would not take employment that would jeopardise any parenting responsibilities that she had).
Each parent has the capacity to provide for the children’s emotional and intellectual needs and each of them are engaged and involved with the children’s school and their extra-curricular activities.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
Evidence in the family report would indicate that each of the children are more than meeting their milestones and are well adjusted.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not applicable.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60CC(3)(i))
The mother is extremely cynical about what she accepts is a recent improvement in the father’s mode of communication.
Both parties are dedicated parents and have demonstrated a strong ability to put the children’s needs before their own.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
Not applicable.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
The mother relied upon the uncertainties associated with the future outcome of the competing applications of the parties for an order for property settlement. Counsel for the mother submitted that a parenting order based upon the assumption that the mother would receive a financial settlement which would allow her to remain close to where she currently lives was unsafe, and would open up the possibility of further litigation if it was an assumption that proved to be unfounded. It could however be just as equally said that if weight was given to that fact in a way that allowed the mother to succeed, and she then did obtain a substantial property order which allowed her to stay in the vicinity of her current residence, then the father could bring a fresh parenting application on that basis. The fact is that the parties have asked me to bifurcate the hearing and deal only with the parenting issue, given the complexities involved in the preparation of the property case.
As I have already mentioned, the dispute between the parties in relation to property involves an assertion by the mother that shortly after separation the father disposed of significant assets. The parties have agreed upon the commissioning of experts to provide the necessary expert evidence to progress the property matter and the matter will be relisted before me for further directions when that work has been completed. Unresolved financial issues are a significant part of any simmering tension that currently exists between the parties. Those issues will however be resolved in time either by agreement or determination.
The mother seeks 65 percent of all the parties’ property. If the mother’s application is successful, it would provide her with sufficient resources for her to remain accommodated close to the children’s current school.
There is a risk that the mother may not achieve what she seeks in the property settlement and a risk that she might seek to relocate from the area in which she current resides at some future time. I assess that risk as low. I do not give that consideration any particular weight.
Any other relevant fact or circumstance (s 60CC(3)(m))
Not applicable.
EQUAL SHARED PARENTAL RESPONSIBILITY AND EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Subsection 65DAA(1) and (2)
The father does not propose an equal time order between now and 13 November 2015. What he proposes is that initially he have significant and substantial time (being six nights a fortnight). On the face of the father’s proposal, I accordingly do not intend to consider the commencement of equal time until November 2015. Counsel for the father suggested during final submissions that I might, on my own motion, consider equal time prior to the commencement date sought by the father. I indicated to counsel for the father that given that there had been no exploration of that possibility during the hearing that that was not a proposal that I would consider.
Section 65DAA(5)(a)
The parties currently live proximate to one another in circumstances where the children can seamlessly move between the two households and to and from their school.
I indicated during the hearing that I intended to deal with this matter on a final basis on the facts as known and upon the case being presented by the mother in her property hearing.
If in fact the result of the property matter means that the mother has a sustainable application to move from the current location, then the parenting matter may have to be reconsidered afresh given the usual principles in Rice & Asplund (1979) FLC 90-725. Given the result in this hearing, there would then be an issue as to who the primary carer would be and it may not automatically be the mother in those circumstances, because the mother’s move might necessitate a change in the children’s school. The current agreement in relation to the children’s high school may also need to be reconsidered.
Section 65DAA(5)(b)
The parties have demonstrated for a significant period that they have the capacity to implement an arrangement for the children spending equal time, and/or substantial and significant time with each of them.
Section 65DAA(5)(c)
The parties agree that they were a low conflict couple during the period of time that they were together. Despite the circumstances of the separation, that has remained the case.
I assess the parties’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for equal time or substantial and significant time as excellent.
Section 65DAA(5)(d)
The impact of the father’s proposal upon the children will at worse be neutral but on balance I assess will be positive for the children.
Section 65DAA(5)(e)
There is no other matter that I was directed to, going to the issue of reasonable practicality.
CONSIDERING MAKING AN ORDER TO PROVIDE FOR SUBSTANTIAL AND SIGNIFICANT TIME UNTIL NOVEMBER 2015 AND EQUAL TIME FROM NOVEMBER 2015 AND s 60CA OF THE ACT
Having considered each of the parent’s proposals, I conclude that the proposal by each parent is in the best interest of the children. It follows that I consider that the children spending equal time with each of the parties (the father’s proposal) would be in the best interests of the children.
I find that the children spending six nights a fortnight, and then seven nights a fortnight with the father, is reasonably practicable.
Both the parties in this case are exemplary parents. It is refreshing to know that the children would thrive under the proposal of either party.
Having found that the father’s proposal is in the children’s best interests (as is the mother’s) and having considered whether the children spending substantial and significant time and then equal time with their father is reasonably practicable, and having found that it is, I find that making an order as proposed by the father for the children to firstly spend increased time with him, and then increase this to equal time with him, is in the best interests of the children.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 August 2014.
Associate:
Date: 21.8.2014
SCHEDULE 1
Applicant Father
Father’s case outline document
Initiating Application filed 1 May 2013
Affidavit of the father filed 19 June 2014
Affidavit of the father filed 31 July 2014
Parenting Questionnaire filed 24 April 2014
Respondent Mother
Mother’s case outline document
Amended response to initiating application filed 16 May 2014
Affidavit of the mother filed 17 July 2014
Affidavit of the mother’s partner, Mr F, filed 17 July 2014
Affidavit of the maternal grandmother, Diane Byrne, filed 17 July 2014
Parenting Questionnaire filed 17 July 2014
Documents prepared by the Family Consultant
Children and Parents Issues Assessment 18 October 2013
Family Report 18 March 2014