Nowland & Nowland - [2007] FMCAfam 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NOWLAND & NOWLAND

[2007] FMCAfam 1117

FAMILY LAW – Interim arrangements for care of children age 10 & 7 – younger child has special needs – presumption of equal shared parental responsibility at interim stage – best interests – reasonable practicality.

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

Goode & Goode (2006) FLC 93-286

Applicant:

MS NOWLAND

Respondent:

MR NOWLAND

File number:

ADC 5944 of 2007

Judgment of:

Brown FM

Hearing date:

19 December 2007

Date of last submission:

19 December 2007

Delivered at:

Adelaide

Delivered on:

21 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr Whittle

Solicitors for the Applicant:

Norman Waterhouse Lawyers

Counsel for the Respondent:

Mr Bowler

Solicitors for the Respondent:

Johnston Withers

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of the marriage T born in November 1997 and M born in April 2000.
The children live with the parents for equal periods of time as follows:
(a)During term time, on a week about basis, moving between their parents respective homes on each Thursday from after school;
(b)For equal periods of time during school holidays provided that during the forthcoming end of year school holiday the children live with the father between 13 and 20 December 2007 and a further period of two consecutive weeks in January of 2008, the exact weeks to be agreed between the parties.
The father spend time with the children over the Christmas period of 2007 from 4:00pm on Christmas Eve until 1:00pm on Christmas Day.
Both parties be at liberty to attend parent/teacher meetings and school functions that parents routinely attend.
Both parties be at liberty to obtain copies of all school reports, school photographs and other reports in respect of the children from their respective schools.
Both parties be at liberty to telephone the children during periods that they are living with the other party and ensure that the children are available to receive such telephone calls.
The parties jointly commission a suitably qualified expert, the expert to be agreed between the parties and failing agreement to be as nominated by the court, to prepare a family assessment herein at the parties’ joint expense.
The parties competing applications be provisionally listed for final hearing on 26 and 27 June 2008.
The matter be listed for further directions on 22 April 2008 at 9:30am for further trial directions to be made and in anticipation of the family assessment ordered herein being to hand.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 5944 of 2007

MS NOWLAND

Applicant

And

MR NOWLAND

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim arrangements for the care of two children – T born in November 1997 and M born in April 2000. The parties to the proceedings are the children’s parents – their mother Ms Nowland and their father Mr Nowland.
On both an interim and final basis, Mr Nowland wishes the children to live with each of their parents in what is commonly called a shared care arrangement, moving between their parents’ homes on a week about basis during school terms and spending half of each school holiday with each of their parents.
M is a child with special needs. In May of 2004, he was diagnosed as suffering from autistic disorder. His speech therapist, Ms G has reported that his autism is accompanied by behaviour difficulties; severe oral motor dyspraxia; expressive and receptive language delays; and severe deficits in social pragmatic skills.
Essentially Ms Nowland asserts that M is not likely to be able to cope with the regime advocated by Mr Nowland and will have grave difficulties in expressing his likely distress at such an outcome. From Ms Nowland’s point of view, M is a child who needs stability and certainty of routine, which she is the better placed parent to provide, both as a matter of previous history and into the future.
Ms Nowland proposes that the two children concerned should live predominantly with her during school terms, spending time with their father from after school on Thursday until the following Sunday evening of one week of each fortnight and overnight on Thursday in the other week. This equates to four nights per fortnight.
In respect of the school holidays, she proposes that the children spend three consecutive days with each of their parents on a rotating basis. Such an arrangement would result in the children spending roughly equal periods of time with both their parents. The basis of this order is that Ms Nowland asserts that the children will become distressed if separated from her for any period longer than three days.
Mr Nowland also wishes an order to be made that the father return the children to her if he is unable to care for the children for any period greater than three hours. The ground she puts forward for this order is that she asserts that the father has had a busy professional and social life in the past and has utilised others to care for the children from time to time. Given M’s special needs in particular, she believes that this in not an outcome which is likely to be in the children’s best interests.
Both parties are in the paid workforce. The father is a self employed physiotherapist. The mother works in her family business. It is her position that she has structured her hours of work around her commitments to parent the children, particularly M, who has an intensive round of therapies which he attends. It is Ms Nowland’s case that she has attended to the vast majority of M’s needs, particularly his therapeutic ones in the past. Accordingly she would categorise herself as the children’s primary carer.
In such circumstances, particularly given M’s special needs, she advocates the court adopting a cautious approach at this interim stage and believes it would be premature for the court to adopt the shared parenting regime proposed by the father.
The father concedes that he has had a busy professional life in the past. However, since 2005 he has taken active steps to reduce his work commitments and more recently has scaled back his work again in order to be available to parent the children. He disputes any suggestion that he is not an actively involved parent in respect of both T and M. In particularly he vigorously refutes any suggestion that he is not vitally concerned and involved in M’s care.
Accordingly this is a case concerning the presumption of equal shared parental responsibility. Mr Nowland argues that the presumption applies in this case and accordingly the court is obliged to consider the children spending equal periods of time with each of their parents.
On the other hand, it is Ms Nowland’s position that the presumption should not be applied at the interim stage because it is either inappropriate to do so or would not be in the children’s best interests for it to be applied.
The parties separated very recently on 19 October 2007, after a marriage of around seventeen years. The separation occurred against a background of discord and unhappiness. Emotions are still raw. Accordingly the hearing takes place against a background of urgency and dispute.
As this brief introduction makes clear there are many disputes of fact between the parties. The main dispute is Mr Nowland’s level of involvement in the care of the children in the past and his insight into how M’s special needs are to be best accommodated now the parties have separated.
The hearing at the interim stage has to be brief. As I have not heard any direct spoken evidence from either of the parties nor seen them being tested by the other party’s lawyer I cannot make findings of fact where there is dispute between them as to what previously happened. This full examination of all the evidence will most likely take place in the New Year. The orders made today are temporary and will stand until this final and longer hearing.
In addition, at this stage I do not have all the evidence before me which will be available at the final hearing. In particular, I do not have any detailed psychological assessment in respect of the family. In addition I do not have a full picture of M’s special needs. The parties agree that there should be a family assessment before any final adjudication takes place. The assessment will take time to prepare.

The legal principles to be applied

The service T and M’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is considered to be neither to be in the child’s best interest nor reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [ Goode & Goode (supra) at 80,903]
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA. However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act, which is the part of the Act dealing with children.

The Evidence

Both parties have prepared two lengthy affidavits each. In addition I have been provided with two medical reports. Firstly a report from M’s speech therapist, Ms G. Secondly a report form Associate Professor Y, who is a psychologist. She has been involved with M at the Early Intervention Research Program at Lxxx University. It was she who diagnosed M with autistic disorder in May 2004.
My impression of both partes is that they are intelligent and loving parents who wish to be closely involved in care arrangements for the children. This is not a case where allegations of family violence, abuse or neglect arise. In addition it seems that both parties are well resourced financially and both can offer comfortable homes for the children.
The father is 45 years of age. The mother is 42. They married in March 1990. The father concedes that the mother was the children’s main provider of care prior to September 2005. At this stage he says he began to reduce his work hours in order to become more involved with the children.
The mother does not necessarily accept that this is true. She does however accept that Mr Nowland has participated in the care of the children. The main thrust of her case is that both before and after 2005 she has done more of the nuts and bolts parenting, particularly in regards to the onerous regime of therapeutic interventions required by M.
In any event I do not think it can be said that Mr Nowland is either a disinterested or incompetent parent. In fact he asserts that he has a particular interest in advocating for the disabled as manifest by his standing for Public Office in 2005. The father also points to the fact that he has taken M to hydrotherapy sessions each fortnight.
It was Ms Nowland who vacated the parties’ former family home in Dxxx. She left it on 19 October 2007, moving to rented accommodation in Txxx, an adjoining suburb. T has continued to attend her primary school at Rxxx. M has continued to attend Mxxx Special School. Neither party seems to have any considered proposals or need to change the children’s school arrangements at this stage.
Since separation there has been considerable controversy between the parties as to the appropriate arrangements for the care of the children, particularly the extent of time they should spend with their father. The mother asserts that the father has attempted to impose his will upon her regarding his preferred outcome of shared care. In any event, arrangements for the care of the children seem to have occurred haphazardly and against a background of acrimony.
Both parties have been critical of the other for allowing his or her social engagements or interest to impose on care arrangements for the children. The mother is particularly critical of the father for engaging a nanny to assist him with caring for the children whilst they have been in his care. This has resulted in the nanny taking M to one session of speech therapy with Ms G.
Both Ms G and the mother are critical of the father for this as it is apparently an integral part of the therapy that parents learn how to apply the therapies prescribed to the child concerned. From Ms Nowland’s point of view the involvement of the nanny in the process is indicative of the father’s lack of insight about the process of speech therapy.
The mother is also particularly concerned as to how M has and will continue to cope with being cared for by a nanny. It is her view that, given his special needs, M will be distressed if he is cared for by any person with whom he is unfamiliar. It is her evidence that M has only been away from her care for eleven nights of his life up to this stage.
The mother works from 9.30 am to 2.30 pm and asserts she has flexible hours because she works in a family business of which she is a director. The father asserts that he will be able to work only on the Monday, Wednesday and Friday of the weeks he proposes the children live with him also between the hours of 9.30 am to 2.30 pm.
The mother takes the father’s assertion that he will scale back his physiotherapy practice with a grain of salt. The father says that if he has had recourse to babysitters and nannies of late it has been as a result of necessary adjustment while this scaling back occurs. He asserts that he will always be available to care for the children if his proposed arrangement comes about.
At this stage at least, the parties do not have any great facility to resolve disputes between them regarding care arrangements for the children. Both accuse the other of being dictatorial in regards to his or her preferred parenting arrangements. However it is the father’s position that now the parties have begun using a communication book it is likely communications between them will now proceed more smoothly.
On the other hand it is the mother’s position that the father is currently emotionally unstable and as such is incapable of communicating with her rationally or properly about the children but rather is intent on imposing his own will on her and the children. The father’s position, supported by his treating psychologist, Mr W is that he is suffering the inevitable distress and sadness that follows marriage breakdown. The father has been treated for depression, anxiety and what are described as “marital issues” by Mr W up until May of 2007.
The parties also have different views as to how the children are coping with their parents’ separation. The mother is of the view that T is weepy and distressed and uncomfortable with the amount of his time the father has imposed on her. The father is of the view that T has adapted to the upheaval fairly well. In fact it is his position that T herself has advocated a shared care regime as being her preferred outcome.

The mother also asserts that M’s teachers have described him being clingy and insecure at school following periods of time during which he has been with his father. Again the father refutes this suggestion saying that both children seem to him to happy and well settled when they are with him. He acknowledges some initial clinginess from M but asserts that he has become more secure as time has progressed.
It is the father’s view that there is an internal contradiction in the mother’s case created by her assertion that the children, particularly M require stability and her advocating of the three day about proposal during school holidays. He asserts that it is difficult to conceive of a more destabilising regime for children.
Mr Nowland deposes that he has arranged to take three weeks leave during the forthcoming school holiday split into periods between

13 to 20 December and a further two weeks in January. Thankfully the parties are in agreement as to how the children should spend Christmas. It has been agreed that the children should spend from 4.00 pm on Christmas Eve until 1.00 pm on Christmas Day with their father.
These are a range of the issues in dispute between the parties in their lengthy affidavits filed in the matter to date. At this stage I cannot resolve the many issues in dispute one way or the other. I suspect both have placed different emphases in respect of matters of importance to them in their past parenting of the children. I also suspect that both have currently little capacity to empathise with the position advocated by the other and have each followed the natural tendency in proceedings such as this to minimise their own failings and maximise those of the other.
At any event, it is clearly my view that both parents have much to offer the children both now and in the future. What I think is clear from this synopsis of the parties’ respective positions is that it cannot be said one or other of them has been or is likely to be an absent parent or is a parent who can be described as being incompetent.
Rather they are likely to have different parenting skills and different views as to what is important in parenting. Certainly the parties do not have a consensus as to what therapies M should follow. Where they do agree is that M should have the best treatment available. Tensions arise as to what is likely to be most efficacious for him.
The father advocates a communication skills computer program called TITO. He also has been involved in a verbal behaviour therapy program called Key Early Years. As previously indicated, he has taken M to hydrotherapy.
These differences in emphasis between the parties appear clearly in the respective reports of Ms G and Professor Y. Professor Y indicates that it was Mr Nowland who involved M in the Early Intervention Research Program, which led to M becoming involved in a therapy program known as Applied Behavioural Assessment “ABA”. She speaks of the extensive involvement and commitment of both Mr Nowland and Ms Nowland in and to the program, which begins with an intensive two week training program for the parents concerned.
The program involves fifteen hours of therapy per week which is conducted by both parents and psychology students, as well as other trained therapists who visit the home of the child concerned. The child is engaged with special toys, flash cards, puzzles and exercise equipment. The father deposes as to his extensive involvement in the program, which is continuing.
Professor Y writes as follows:
“The program we developed for M can be conducted anywhere with appropriate support. Because we like children to generalise their skills it can be conducted in different settings. This is not always what the child would prefer but we need to challenge their need for routine to some degree. Having said that, the therapists who implement the therapy should be well trained in the implementation of ABA therapy.”
The father points to this comment as being supportive of his view that M need not necessarily be made a slave of routine but needs to be challenged by change from time to time. In any event he says the greatest change to M’s routine cannot be undone – that is the separation of his parents. He also points to the fact that he can continue to involve himself and M in ABA and in fact he, with the consent of the mother has made the former family home available for it.
Ms G is highly supportive of the mother, pointing to the fact that she has brought M to 32 of his 34 scheduled sessions with her. She is also complimentary of how Ms Nowland has involved herself in M’s home therapies. It being her view that

Ms Nowland has been primarily responsible for them. As previously indicated she is impliedly critical of Mr Nowland for attending only one session with her and sending a nanny to another.
Ms G writes as follows:
“It is my opinion as a Speech Pathologist of 30 years practicing experience, that those children who are diagnosed with severe Autism Spectrum Disorder function best when they are in a predictable routine. Children such as M who have additional deficits with respect to Auditory Processing, Abstract Reasoning Ability and Sever Receptive Language Ability would, in my opinion find changes to their environment and routine to be difficult to comprehend. In therapy, I observe M to demonstrate repetitive interests, routines and rituals. He becomes stressed with change and has been observed to indulge in behaviours such as screaming, running away, falling to the floor, grabbing toys or throwing them. M is most delightful and responsive when he is exposed to firm consistent discipline assisted by visual aids in the form of diagrams (Boardmaker cards) and of Australasian Signed English or Makaton Signs. He requires visual schedules to explain his world to him as he has no real concept of time, and difficulty in following new routines that need to be followed.
M is a child who in my view still does not have enough verbal language at his disposal to express how he is feeling. His emotions are demonstrated by his behaviour. Whilst his willingness to cooperate has improved in his treatment, his vocabulary and use of phrases is still rote-learned and he is unable to general language. He babbles using jargon (gibberish) interspersed with a few recognizable words and uses pointing to make his needs known. M has difficulty in forming sounds at the front of his mouth and as such substitutes sounds produced at the back of his mouth thus much of what he says is unintelligible to the unfamiliar listener (these deficits are a result of a combination of his Phonological disorder and Oral Motor Dyspraxia).”
This opinion seems to be the bedrock of Ms Nowland’s view that she is best placed to provide the stability and certainty of regime that M requires. The father disputes this and asserts that he has never observed M engage in any of the behaviours described by Ms G.
These medical issues are difficult, if not impossible to resolve at an interim stage. However it seems clear that Ms G has not had a great deal of involvement with Mr Nowland personally. It may be that she is unwittingly somewhat jaundiced about him. I do not know.
A family assessment is likely to be helpful in providing an independent assessment of the children’s relationship with each of their parents and how each of them approaches M’s special needs. In particular what parenting regime is likely to best suit him. Obviously I do not have that assessment now and the controversy about the best regime for M remains.

Relevant factors under section 60CC

The first requirement for the court is to examine the various section 60CC factors, which apply to the circumstances of the case. Clearly the positions of the parties are polarised in the extreme. This makes the task of the court making any findings of fact problematic, if not largely impossible. Yet a decision must be made. Such a decision must be informed by the intent of the applicable legislation, which has recently been significantly amended.
The legislation places two considerations in a position of pre-eminence – the need to protect the child concerned from abuse and the benefit of the child having a meaningful relationship with both of his or her parents.
This is not a case involving allegations of family violence, neglect or abuse. Accordingly it seems clear that the consideration of the children having a meaningful relationship with both their parents should be given primary importance in this case.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if such parental relationships are enhanced. The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (supra) at 80,901]
I am satisfied that both T and M have a meaningful relationship with both their parents. This is important. The mother concedes that the father should have extensive involvement with the children. In the long run she also concedes that the parties should have equal shared parental responsibility for T and M but not at this stage.
The difference between the parties is the degree of that involvement. This is a common phenomenon in cases such as this one where there is an emphasis on the arithmetical division of how periods of time – weeks, fortnights and months – are to be divided between parents. Although the mother concedes that the father should be extensively involved with the children and this is likely to be in their best interests, it is her position that a strict division of time will be positively harmful for the children. The basis of her view is that the children will be too long away from her and the routine she offers.
I do not know with any degree of certainty how either child will react to either the regime advocated by the father or that advocated by the mother. In the upheaval following the parties’ separation and the uncertainty which has followed, any regime must have some element of experimentation about it. Notwithstanding M’s special needs I do not think that it can be said with any degree of assurance that the father’s preferred outcome must necessarily be harmful for M.
I reach this view because of the significant nature of the relationship between the father and M and T [section 60CC(3)(b)]. Although the parties disagree about their respective level of involvement in M’s therapies, the father has been involved in many of them. M is familiar with his father and indeed with the environment offered by him, which is the parties’ former family home.
Given this degree of involvement, I do not think, at this stage, it can necessarily be said that one parent is better placed to provide for the children’s emotional and intellectual needs than the other to any significant degree [section 60CC(3)(f)]. It cannot be said that the father is disinterested in M’s various therapies, although he may have different emphases in them to the mother. Indeed he has obviously not been as involved in speech therapy to the same degree as the mother. It also seems to me that both parties have a praiseworthy attitude to the responsibilities of parenthood [section 60CC(3)(i)].
There is a dispute between the parties regarding T’s views as to her preferred outcome. This dispute cannot be resolved in these proceedings. M is too young and has such difficulties that his views cannot be determined [section 60CC(3)(a)].
The mother points to M’s special characteristics [section 60CC(3)(g)] in support of her position. She also asserts that the court needs to closely consider any too precipitate change in his care arrangements, particularly pointing to her view that she must be regarded as his primary carer [section 60CC(3)(b)]. The father is critical of her for advocating the maintenance of an artificial status quo pointing to what the Full Court said in Goode [(supra) at 80,901-2]. The full passage is as follows:
“72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”
In this case, I do not think that it can easily be concluded that Mr Nowland has failed to take the opportunity to be involved in decisions regarding the children; or to spend time with them [section 60CC(4)]. In addition, regardless of the mother’s criticisms of him, in the fairly brief period since the parties separated, the father has endeavoured to involve himself with the children as much as possible, albeit that the mother says this has occurred insensitively [section 60CC(4A)].
The parties live in adjoining suburbs. There are no practical impediments for the children spending time with the father within the parameters he proposes [section 60CC(3)(e)]
Accordingly I do not think it can be said that the children are necessarily well settled in the mother’s care alone in the period since the parties separated. The regime created by this situation is essentially different to that which previously existed when the parties were living together. The children have and will continue to adapt to that change.
The mother also advocates that the court, in adopting a cautious approach to the current situation should await a more definitive assessment of the children’s needs before considering a shared care regime. My difficulty with this approach is that it is uncertain precisely when this assessment will be to hand and the mother is the only party who advocates the maintenance of this status quo.

Conclusions

I do not think that the presumption created by section 61DA is rebutted at this stage in the absence of considerations of family violence and abuse. Nor is it clearly inappropriate that the presumption not be applied at the interim stage. Although there is much dispute between the parties about many aspects of the case, it cannot be said that Mr Nowland has not been involved with the children in the past or is likely to be disinterested in them in the future.
In addition having considered, as best I can in the context of this limited hearing, the various section 60CC factors, I do not think it can be concluded that the application of the presumption would not be in the best interests of the children concerned.
Having reached this conclusion I am required to consider the children spending equal periods of time with each of their parents, subject again to considerations of the children’s best interests and overall practicality.
Neither party seeks the separation of the children. However the tenor of the mother’s case is that M’s special needs dictate that different considerations should apply to him. Given the significance of the relationship each child has with the father, I am not persuaded that it can be said that necessarily the shared care regime is not on balance likely to be in their best interests.
The parties live very close together. Their relationship is poor but their separation is in it early stages. In any event regardless of whether or not the mother or the father’s preferred outcome is adopted, the parties will have to work closely together. Mr Nowland wants to be involved in therapeutic decisions regarding M and Professor Y’s letter indicates that he has been so involved in the past. The children will have to pass between the parent’s two households with a high level of frequency, certainly if the three day about regime advocated by the mother is adopted during the forthcoming school holidays.
At this stage, the mother has no commitment to having an empathetic or highly mutually inclusive parenting regime with the father. Her view may change in the future. Certainly her final position is that the parties should have equal shared parental responsibility for the children at some stage in the future.
I am concerned that, as a result of the emotional topography which often prevails in children’s cases, a party who is vehemently opposed to either a shared care regime or one whereby the child involved spend substantial time with both his or her parents, for reasons perhaps relating to his or her own emotional needs or for some other ulterior motive, may be encouraged to act in a way which is contrary to the principles and objects of the amending legislation.
As a result of such factors he or she may be prone to perpetuate parental conflict; may magnify the practical difficulties which exist; and intensify the level of disputation about various parenting issues; in order to defeat the application of the mechanisms provided by s.65DAA.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i) [See note 1 to section 65DAA(5)]. Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents, regardless of their personal attitude for the other parent.
The most telling and difficult issue is the likely impact a shared cared regime will have on the children themselves, particularly M. I cannot know definitively at this stage what it will be. However, in my assessment, both parties are committed and well motivated parents. They are also both well resourced and have each made a commitment to tailor their work around the needs of the children in future.
These factors assuage my concerns about the issues raised by the mother. In addition, I cannot make any definitive assessment of what the consequences will be for the children if they are separated from their father along the lines advocated by the mother, given the significance the father has had in the children’s lives both before and after separation.
Ms G advocates continuity and predictability of routine. No doubt this is important but the mother’s circumstances have changed radically since the parties separated and in my assessment she cannot be said to be the sole source of such routine and predictability, given the father’s past involvement in the children’s lives.
On the other hand, Professor Y asserts that M needs to be challenged from time to time in terms of his routine. Both experts are likely to be correct. The father is both a part of M’s routine and quite possibly also able to set challenges for him in ways that are different to the mother.

As I said at the outset, I consider that both parties have much to offer the children at this stage and having applied the presumption of equal shared parental responsibility to the matter, I do not think it would be either contrary to the best interest of T or M or necessarily impractical for them to spend essentially equal periods of time with both their parents.
For this reasons I have decided to make the orders at the commencement of these reasons for judgement.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 21 December 2007