Neal and Troy
[2011] FMCAfam 404
•18 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEAL & TROY | [2011] FMCAfam 404 |
| FAMILY LAW – Children – parenting orders – two children – boy aged 9 years – girl aged 6 years – parental responsibility – where parents have agreed about equal shared parental responsibility – equal time with each parent – where parties have agreed that school holiday time should be shared equally – other special occasions – where parties have agreed about special occasions – time spent with each parent during school weeks – substantial and significant time. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61C, 61DA, 61DB, 62G, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) 35 Fam LR 422; FLC 93-286 |
| Applicant: | MS NEAL |
| Respondent: | MR TROY |
| File Number: | SYC 3749 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 24 & 26 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Messner |
| Solicitors for the Applicant: | Doolan Wagner & Callaghan |
| Counsel for the Respondent: | Ms Christie |
| Solicitors for the Respondent: | Paul & Paul |
ORDERS
The Orders made by consent on 26 November 2010 are confirmed.
The children [X] born [in] 2001 and [Y] born [in] 2005 are to live with Respondent Father during school term time as follows:
(a)Each alternate weekend from after school Friday until before school on Monday PROVIDED THAT if the Monday is a public holiday then until before school on Tuesday; and
(b)Each week from after school on Wednesday until before school on Friday.
The children are to live with the Applicant Mother at all other times.
IT IS NOTED that publication of this judgment under the pseudonym Neal & Troy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3749 of 2009
| MS NEAL |
Applicant
And
| MR TROY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Mother of two young children for parenting orders relating to the parties’ two children, [X], aged 9 and [Y], aged 6 years.
The area of dispute is fairly narrow, as the parties have agreed to a number of orders about their children. Try as they might, they have been unable to agree about the amount of time the children are to live with their father during the school term.
Background
The Father was born [in] 1961. He is 49 years old.
The Mother was born [in] 1966, so she is 44 years of age.
The Father has three children from a prior relationship, two of whom are adults.
[A] was born [in] 1989. He was 21 years of age at the date of the hearing. [B] was born [in] 1992; she is eighteen years old. [C] was born [in] 1994, so he is 16 years of age.
The parties first met in March 1999 and commenced living together in November of that year. Their first child, [X], was born [in] 2001. They married the next year, [in] 2002.
The parties’ second child, [Y], was born [in] 2005.
The parties’ relationship deteriorated from at least 2006 on, and the parties commenced sleeping in separate rooms in 2007. They remained living under the one roof until the Mother left the home on 3rd April 2010. She had, however, commenced proceedings for property orders and a Child Support Departure Order on 25th June 2009.
On 16th February 2010 the Mother filed an Amended Application, seeking parenting orders as well as property and child support orders. The application was transferred into my docket and on 4th March 2010 I made interim parenting and property orders by consent and directed the parties to attend a Conciliation Conference before a Registrar and a Child Dispute Conference with a Family Consultant.
The details of the interim property orders are no longer relevant, as the parties have since entered into final consent orders resolving all financial issues between them.
The interim parenting orders to which the parties consented provided that:
(1)The parties would have equal shared parental responsibility for the children.
(2)The children would live with the parents during the school term as follows:
(a)with the Father from after school on Tuesday until before school on Thursday each week;
(b)with the Father from after school on Friday until 6:00pm on the Sunday in the first week of school term and alternate weeks thereafter; and
(c)otherwise with the Mother.
(3)The children would live with the Father and the Mother during the school holidays as follows:
(a)in the April, July and September/October school holidays for half the holidays with each parent;
(b)in the December/January school holidays on a week about basis with the Mother to have the first week and each alternate week thereafter; and
(c)the children would spend Christmas Eve and Christmas Day until 3:00pm with the mother and then from 3:00pm on Christmas Day until 6:00pm on Boxing Day with the Father; and
(4)The children would spend Mother’s Day with their mother and Father’s Day with their father.
The parties were still living under the one roof at the time of these orders. They agreed that, until the Mother moved out, each parent would vacate the home during the time the children spent with the other parent. They also agreed that they would share the children’s primary school fees equally and that they would jointly seek a referral to a counsellor for [X].
The Mother moved out of the home on 3rd April 2010.
On 8th April 2010 the parties attended the Child Dispute Conference that had been ordered on 4th March. No agreement was reached. The Family Consultant noted the parties’ mutual allegations of family violence and recommended that a Family Report should be prepared.
The Family Consultant stated:
This is a complex family matter involving a long and apparently highly conflicted separation between the parents under the one roof, followed by a recent separation of the households.
A Family Report may be of particular assistance to the Court, however (it) is recommended that this would be conducted no earlier than July 2010, to enable the children to make some adjustment to their parents living separately.[1]
[1] Family Consultant Memorandum to the Court 8.4.2010
The parties attended a Conciliation Conference with a Registrar on
19th May 2010 but a settlement was not reached in respect of the property issues.
On 24th May 2010 the application was set down for final hearing. A Family Report was ordered under the provisions of s.62G of the Family Law Act.
The application was heard on 24th and 26th November 2010.
On 24th November 2010 the parties entered into consent orders resolving the property issues.
After further discussions and some evidence, the parties were able to arrive at a partial resolution of the parenting issues between them, and on 26th November I made some orders by consent. Those orders provided that (in summary):
a)The parties would have equal shared parental responsibility for the children;
b)During the school holidays the children would spend equal time with each party;
c)The children would spend time with each parent on their birthdays, on the particular parent’s birthday, with their mother on Mothers Day, with their father on Fathers Day, from 9:00am on Christmas Eve until 11:00am on Christmas Day with their mother in even numbered years and their father in odd numbered years, and from 11:00am on Christmas Day until 6:00pm on Boxing Day with their father in even numbered years and with their mother in odd numbered years;
d)Each parent would give the other first option to care for the children if they were unavailable for more than two consecutive nights;
e)Telephone communication;
f)Changeovers to be at school or, if at a parent’s home, the Mother to deliver the children and the Father to return them;
g)The Father was to obtain sets of clothes for the children, including sports uniforms and ballet outfit;
h)The parties were to ensure that the children did their homework;
i)The parties would facilitate [X]’s attendance on Dr B;
j)The parties were restrained from unilaterally causing either child to attend a counsellor or psychologist or psychiatrist without the other’s consent;
k)When on holidays with one parent the children would be able to speak to the other by telephone on alternate days;
l)The parties would notify each other about any illness or injury to a child;
m)The parties would notify each other of any change of address;
n)The parties would notify each other of addresses and telephone numbers of places where they would stay with the children when on holiday;
o)
The parties would be able to take the children overseas on
42 days notice;
p)The parties would take the children to their social events and extra-curricular activities; and
q)Each party would be at liberty to attend the children’s school, sports and social events.
Issues in Dispute
The issue that remained concerned the time that the children would spend with each parent during the school term, including the number of nights they would spend with the Father and the number of changeovers that would occur.
The Mother’s proposal was that the Father would spend time with the Father:
a)Each alternate weekend from after school Friday until before school on Monday, or before school Tuesday if the Monday were a public holiday; and
b)From after school on Wednesday until before school on Thursday each week.
The Father proposed that during the school term the children would live with:
a)the Mother each week from after school Monday to before school Wednesday and each alternate weekend commencing the second weekend of each term from after school Friday until before school Monday; and
b)the Father each week from after school Wednesday until before school Friday and each alternate weekend commencing the first weekend of each term from after school Friday until before school Monday.
The difference, essentially, was the Thursday night of each week.
Evidence
Both the Mother and Father gave oral evidence. The Family Consultant, Dr V, was required for cross examination.
The Mother gave evidence that she was working on Mondays, Tuesdays and Wednesdays, but that this arrangement would change to Wednesdays, Thursdays and Fridays in 2011.
The Mother conceded that the children had a good relationship with each of their parents but did not agree that this was because she and the Father had a shared care arrangement. She said that she had been primarily responsible for the children when they were babies and infants and that the Father’s involvement with them had increased “minimally”. She conceded he loved them and they loved him but she was their primary carer.
There was very little communication with the children’s father; they rarely spoke to each other.
It was the Mother’s position that there should be six changeovers of the children between the parents each fortnight. She agreed that she wanted to reduce the children’s time with their father.
The Father gave oral evidence. He said that he had entered a parenting after separation program as suggested by Dr V.
In cross-examination by the Mother’s counsel, Ms Messner, the Father denied being in a relationship with a woman, although he agreed that he went out with her about once a fortnight, she had lent him a motor car and they occasionally go on holidays together.
The Father said that he could not communicate with the Mother effectively. Forgetting the children’s clothes is a problem, he conceded. He proposed that they children live in an equal time arrangement between him and the Mother.
The Father’s cross-examination was interrupted because of the need to take the oral evidence of the Family Consultant.
When his evidence resumed, the Father said that he would be “totally happy” if the maternal grandmother were to step in and look after the children. He said she was “a very good grandmother”.
The Father said that the child [Y] had never said to him that she was bored staying with her paternal grandparents. He was teaching her how to play chess and he has already taught the elder child, [X], how to play.
The Father spoke highly of the Mother’s parenting skills, saying:
I think [Ms Neal]’s a fantastic parent and I trust her with my kids.
He conceded that he needed to communicate better on some things.
The Family Report
A Family Report was prepared by Dr V and released to the parties on 15th November 2010.
For the purpose of preparing her report, Dr V conducted interviews with each of the parents and the children. She also observed the children with each of their parents.
The Family Consultant noted that the children were living with the Mother for eight nights a fortnight and six nights a fortnight with their father. She also noted that the mother sought to reduce the children’s time with their father to four evenings a fortnight.
The following issues were seen as being in dispute:
· How much time the children should spend with each parent
· The nature of communication between the parties
· The children’s attachment relationships
· The level of family violence to which the children have been exposed
· Allegations of mental health issues and anger management
· Unresolved financial issues[2]
[2] The financial issues have now been resolved by means of consent orders
The Family Consultant described the Mother as “a vital, bright and articulate person”.[3]
[3] Family Report at [9]
The Mother described her own father as “authoritarian” and said that she does not have contact with him. He is separated from her mother.
The Mother told the Family Consultant that she had been the primary care giver for the children throughout their childhood with minimal support from the Father and that the children’s primary attachment was to her. She spoke of the limitations on the Father’s time with the children brought about by his work commitments, his extremely long working hours and the amount of time that he devoted to his three older children. She criticised the Father for his lack of support for her when [Y] when she was an infant.
The Family Consultant noted that the Mother expressed concerns that the Father was motivated to seek equal shared care orders in respect of the children “because of property and child support issues”.[4] The Mother did, however, acknowledge, that:
…the children love their father and they love him and she conceded that he is ‘a great Dad’[5]
[4] Ibid at [18]
[5] Ibid
However, the Mother was critical of the Father’s lack of housekeeping skills and the fact that he would overlook the basic needs of feeding the children, washing their clothes, having a set routine for them and ensuring that their homework was done.
The Mother expressed the opinion that the children were unsettled and felt exhausted and tired from spending two evenings in the middle of the week with their father and felt stressed by having to transport their belongings between the parents’ two households.
The Family Consultant described the Father as “a self assured and well groomed man who indicated that he was concerned to maintain an active presence in the children’s lives”.[6]
[6] Family Report at [21]
The Father told the Family consultant that he was the only child of loving parents and had a “fantastic” childhood. He described the Mother’s aggression and difficulty in managing her anger. He said that their relationship deteriorated after [Y] was born and he had questioned whether [Y] was “an accident”.
The Father acknowledged that the Mother was “wonderful with the children” and that the children loved her:
He also stated that he is convinced that she has not been aggressive with the children in the way she has been towards him. He did express fear however that, as the children get older and their behaviour becomes more challenging, (the mother) may become more aggressive towards them as well.[7]
[7] Ibid at [26]
The Father expressed frustration about the capacity that he and the Mother have to communicate and resolve issues and commented that the Mother was either non-communicative or argued with everything that he suggested. He expressed the view that the children had become used to both homes and had settled in well to the idea of their parents living separately.
The Father “stated that he does not want to be just a ‘weekend Dad’ and desires to be in tough with their school and be involved in helping them with their school work. He claimed that (the Mother’s) proposal that he spend only 4 evenings per fortnight is motivated by her anger towards him and is not child focused”.[8]
[8] Ibid at [29]
Dr V recorded the child [X] as saying that he loved both parents and after his parents listed his siblings and paternal grandparents as the significant people in his life. He said that he enjoyed spending time with both parents and wanted to see them for equal time.
The younger child, [Y], “presented as a quietly spoken and reserved child”.[9] She said that sometimes she missed her mother when she was with her father and sometimes she missed her father. She expressed a wish that her mother and father could live together again.
[9] Ibid at [34]
Dr V observed the children playing the game Connect 4 and drawing with some pencils the father had brought with him. She noted that [Y] was physically affectionate with her father and sat quite close to him and a warm interaction was observed between the children and their father”.[10]
[10] Family Report at [38]
Similarly, [Y] was observed to sit on her mother’s lap after she entered the room:
The interaction between the children and their mother was quiet and relaxed.[11]
[11] Ibid at [40]
The Family Consultant expressed the view that:
Unless the parties can move into a more conciliatory space where equal shared care becomes more viable, it is important that the children spend substantial time with their father at least five or even six, as is currently the case, evenings per [12]fortnight
[12] Ibid at [49]
The Recommendations in the Family Report are:
a)That the children continue to live with their mother and spend substantial time, up to five or six evenings per fortnight, as well as half the school holidays with their father and share special occasions between the parents;
b)That the parties refrain from coming into contact with each other at changeovers and that changeovers should preferably occur at school;
c)That both parties refrain from involving the children in any inappropriate conservations with the children about the dispute, the other parent or significant others; and
d)That both parties attend a parenting after separation course such as that offered by UNIFAM.
The Family Consultant was cross-examined by counsel for each party. In reply to a question by Ms Messner of counsel, for the Mother, about the fact that [Y] was only five years old and whether five nights a fortnight away from her mother might be too much for her, Dr V said that the time away from the Mother would work better if it were gradually increased. She said that one of the important aspects was the number of changes between the parents. If the children were used to spending time with their father during the week, it would be better for them to spend longer times with him. She spoke particularly of the fact that [X] had sports training with his father on Wednesdays after school and this arrangement has worked well for both the children and the parents.
In cross-examination by Ms Christie of counsel, who appeared for the Father, Dr V said that the children had attachments to each of their parents. Thee was no indication that the children’s time with the Father should decrease because either:
a)They wanted to spend less time with their father; or
b)They wanted to spend more time with their mother.
Submissions
Counsel for the Mother submitted that, as the parties had agreed to an equal sharing of parental responsibility, then the Court needed to consider equal time with each parent.
Was this a reasonably practicable arrangement? The parents’ current and future capacity to communicate with each other and resolve difficulties was a contra-indication. The parties have a poor history of co-operation.
It was submitted that the Mother’s proposal provided for substantial and significant time with the Father. Wednesday was a significant time, as it was historically important, especially for [X] with his sport.
Attention to detail is important for co-parenting. The Father criticises the Mother for becoming upset over trivia but she says that he does not pay attention to detail.
It was further submitted that the Fathers’ relationship was stronger with [X] than with [Y] and the Father had not involved himself as much with [Y] as with [X]. [Y] could not cope with the increased time, from two nights to five nights, with her father, but she could cope with three nights a fortnight.
For the Father, Ms Christie submitted that an arrangement providing six nights a fortnight with the Father would be in the children’s best interests. The Father had restructured his proposal to take into account the change to the Mother’s work arrangements. His proposal would allow the children to be with him when the Mother was working and would offer the advantage of going from six changeovers a fortnight to four.
Since the parties have agreed to equal shared parental responsibility, the Court should consider an equal time arrangement (see Goode & Goode[13]).
[13] [2006] FamCA 1346; (2006) 35 Fam LR 422; FLC 93-286
A disadvantage of the Mother’s proposal is that it contains a six day gap between the children seeing their father each fortnight. The Mother’s proposal should therefore not be adopted because:
a)It took a day away from the children’s time with their father each fortnight; and
b)It created a bigger gap between the times when the children would see their father.
As to the section 60CC considerations, it was submitted that the Father wished to be involved in the day to day care of the children to the maximum extent possible consistent with the children’s best interests. Whilst there is a need to protect the children from family violence, the Father told the Family Consultant that the Mother has not been violent towards the children the way she had been with him, but he feared that she could be violent to them in the future.
The views of the children have to be considered. [Y], at five years of age, is too young for her views to be given any particular weight but [X] is nine years old and his views should be considered.
The children love their parents equally and have a strong and positive relationship with each of their parents.
The Relevant Law
Section 60CA of the Family Law Act provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of the child (or children, in this case) as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) (which are the primary considerations) and 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to the events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters. I will refer specifically to those that are relevant.
It is provided by subsection 61C(1) of the Act that each of the parents of a child who is not 18 has parental responsibility for the child. The term “parental responsibility” is defined by s.61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them.
This presumption does not apply in cases of:
a)abuse of the children or another child; or
b)family violence.
The presumption may be rebutted by evidence that satisfies the Court that equal shared parental responsibility would not be in the children’s best interests (s.61DA(4)).
If there is an interim parenting order in relation to a child, as there is in the case, the Court is required by s.61DB to disregard the allocation of parental responsibility made in the interim order.
If a parenting order provides that the children’s parents are to have equal shared parental responsibility for them, as is the case here, then the Court is required by subsection 65DAA(1) of the act to consider:
a)whether the children spending equal time with each of their parents would be in their best interests; and
b)whether spending equal time would be reasonably practicable; and
c)if it is, consider making an order for equal time.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of their parents would be in the children’s best interests; and
b)whether substantial and significant time with each parent would be reasonably practicable; and
c)if it is, the Court must consider making an order for substantial and significant time.
The term “substantial and significant time” is defined by subsection 65DAA(3) of the Act. It includes time spent with a parent both on days that fall on weekends and holidays and those that do not (see paragraph 65DAA(3)(a)). Again, the time spent with the parent must allow the parent to be involved in the children’s daily routine and occasions and events that are of particular significance to them (see paragraph 65DAA(3)(b)). The time spent with the parent must allow the child to be involved in occasions and events that are of special significance to the parent (see paragraph 65DAA(3)(c)).
In deciding whether equal time or substantial and significant time would be reasonably practicable, the Court must have regard to the matters in subsection 65DAA(5). They are:
a)How far apart the parties live from each other;
b)Their current and future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each parent;
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;
d)The impact that the arrangement would have on the children; and
e)Any other matters as the Court considers relevant.
I have considered all of those matters.
Conclusions
The best interests of the children [X] and [Y] remain the paramount consideration.
It is to their parents’ credit that, despite their history of antagonism and their failure to communicate with each other, they have managed to agree on:
a)Interim parenting orders, including an order that they have equal shared parental responsibility; and
b)Final parenting orders covering many issues, including equal shared parental responsibility.
The question of the children spending equal time with each parent must be considered. The consent orders into which the parties entered on 26th November 2010 provided that the children would spend equal time with the parents during the school holidays and provided for time with each parent on occasions of particular significance to the children and the parents, such as birthdays, Mothers Day, Fathers Day and at Christmas time.
In their proposals about time with each parent during the school term, neither parent seeks a strict equal time routine. The Father’s proposal seeks substantial and significant time. The Mother’s proposal seeks a reduction in the time that the children spend with the Father, but it is still submitted that the Mother’s proposal encompasses substantial and significant time with the Father. In the overall context, it probably does consist of substantial and significant time.
In light of the fact that neither party proposes a strict equal time arrangement, which would involve a significant increase in the time the children spend with the Father, I would have some doubt that imposing such a regime on the parties would be in the children’s best interests. I am also in some doubt that such an arrangement would be reasonably practicable, bearing in mind the parents’ poor level of communication and co-operation and the impact that imposing such a regime would have on the children, particularly [Y].
In order to ascertain what is in the children’s best interests, I turn to the primary considerations as set out in s.60CC(2).
There is ample evidence from the parties themselves and from the Family Report that the children have a string and loving relationship with each of their parents. I am satisfied that it is of benefit to each of the children to have a meaningful relationship with each parent.
There is no evidence that the children have been subjected to abuse, neglect or family violence, but it seems clear that whilst the parents were living together the children, particularly [X], were exposed to some degree of family violence between the parents. It is significant, however, that the parties have separated and no longer live together. There is no evidence of family violence since separation.
Turning to the additional considerations as set out in s.60CC(3), insofar as they are relevant, there is evidence that the children want to have a close and ongoing relationship with each parent. I accept the fact that [Y], who has only just attained the age of six, is of a stage of maturity that little weight should be given to her views. [X], however, is nine years of age and he has made it quite clear that he wants to spend equal time with each of his parents. I attach more weight to his views.
There is no evidence, as the Family Consultant said in her evidence, that the children want to spend less time with their father.
The evidence shows that the children have a strong and loving relationship with each of their parents. According to the Family Report, the children have a strong relationship with their paternal grandparents and their older half siblings. The Father spoke highly of the maternal grandmother as “a very good grandparent”.
The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parents is a matter for consideration. Whilst each admits that the other is a good parent, the Mother has sought to reduce the children’s time with the Father. The reasons that she gives are that has a poor attention to detail. That said, the Mother has consented to an equal time arrangement during the school holidays and to arrangements for the children to spend time with the Father on occasions such as birthdays and Fathers Day, so she can hardly be accused of not seeking to foster the children’s relationship with the Father.
Each party’s proposal includes a change of the children’s circumstances to the extent that there would be an increase in the time spent with one parent and a corresponding decrease in the time spent with the other. There is no evidence that the children are seeking a reduction in the time spent with the Father. It would appear to me that any substantial reduction in the children’s time with either parent would be distressing to them.
The practical difficulty in the children spending time with and communicating with a parent comes not from their geographical distance away from each other but from the parents’ poor communication with each other. However, in fairness to them , they have consented to various parenting orders that have seen the children spending substantial time with each parent.
In my view, there is much to be said for the Family Consultant’s recommendation that the parties refrain from coming into contact with each other at changeovers, which should preferably occur at the children’s school. A reduction in the number of changeovers each fortnight would be an advantage.
The parties have the capacity to provide for the children’s needs, including emotional and intellectual needs. The Father is teaching or has taught the children to play chess. The parties have consented to orders regarding counselling for [X]. The children are involved in sport, ballet and other activities. Both parents want to be involved in the children’s education.
The Mother’s criticism of the paternal grandparents’ care of the children (“whilst the children have a lot of affection for their grandparents and vice versa, his parents are now elderly and only his mother drives”[14]) was opposed by the Father and I am not in a position pot make a finding of fact that the grandparents are not capable of providing for the children’s needs.
[14] Family Report at [18]
It would appear that the Mother is estranged from her father and presumably he plays no role in the children’s lives. The Father speaks highly of the maternal grandmother as “a very good grandparent”.
The children are a boy aged nine years and a girl who has just turned six. There is nothing unusual about them although it is regrettable that [X], in particular, seems to have suffered by being exposed to arguments between the parents. The Mother told the Family Consultant that both children became “excessively clingy” and were showing signs of emotional fragility at school.[15] The Father described [Y] as a sensitive child who shows some separation anxiety. The school had told him she was “fragile”.[16]
[15] Ibid at [17]
[16] Ibid at [28]
Despite their difficulties with each other, the parties have a positive attitude to their children and to the responsibilities of parenthood. The Mother is critical of the Father’s failings in practical areas, such as children’s meals and washing their clothes, whilst he believes that she overreacts to trivia, like a missing sock. The Father has made it clear that he wants be involved in the children’s lives and does not want to be “just a ‘weekend Dad’”.[17]
[17] Ibid at [29]
There have been incidents of family violence whilst the parties were living together, which have taken place in the presence of at least one of the children. There is no family violence order in place.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. In my view, it is desirable to make orders that would ensure that the children spend substantial and significant time with each parent. Changeovers should be reduced in frequency and the parents should look to arrangements where they do not meet at changeover. Changeovers at school are desirable in this regard.
If the parents meet infrequently, the antagonistic interaction between them will reduce, which will reduce the likelihood of an incident that would precipitate further litigation.
The parties are making efforts to fulfil their responsibilities as parents for their two children. They both wish to participate in making decisions about major long-term issues in relation to their children, as shown by their agreement for equal shared parental responsibility.
Since the parties have separated, they have entered into consent orders resolving their financial issues, which would have had the effect of reducing the tension between them. They have entered into consent orders regarding various aspects of parenting their children, including an equal division of the school holidays.
I have considered the parents’ proposals for the time that the children should spend with them during the school term time. I consider that it is in the children’s best interests to spend substantial and significant time with each parent and the Father’s proposal offers a greater stability to the children during the school term.
It is noteworthy that he has restructured his proposal to take into account the Mother’s changed working arrangements, as she has given evidence that she will be working on Wednesdays, Thursdays and Fridays during the school term in 2011. It will be to the children’s benefit to be in their father’s care on the days when their mother is working. [X] has traditionally spent the Wednesday evening with his father, as that is his sport training night, and the Father’s proposal will continue that arrangement.
The Father’s proposal will reduce the number of changeovers between the parties each fortnight.
The Mother’s proposal would have reduced the number of nights that the children would spend with their father each fortnight. There is no evidence that they wanted that to happen, and it is hard to see how reducing the amount of time they spend with their father would be in the children’s best interests.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 April 2011
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