Oakshott and Fraser and Anor

[2017] FamCA 124

FAMILY COURT OF AUSTRALIA

OAKSHOTT & FRASER AND ANOR [2017] FamCA 124

FAMILY LAW – CHILDREN – Where the parties reached agreement on most things save for holiday periods – No evidence and no statutory guidance available to work out a solution – Orders made based on equality of time where possible.

Family Law Act 1975 (Cth)

CDJ v VAJ [1998] HCA 67; 197 CLR 172
Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218
Gillick v West Norfolk AHA [1968] AC 112
U and U [2002] HCA 36; 211 CLR 238

APPLICANT: Ms Oakshott

1^ST RESPONDENT: Ms Fraser

2^ND RESPONDENT: Mr Bull

FILE NUMBER: MLC 10205 of 2015

DATE DELIVERED: 24 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22, 23, 24  February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Mitchell Family Law

COUNSEL FOR THE 1^ST RESPONDENT: Dr Ingleby

SOLICITOR FOR THE 1^ST RESPONDENT: Beswick Foulkes Family Law

COUNSEL FOR THE 2^ND RESPONDENT: Ms Howe

SOLICITOR FOR THE 2^ND RESPONDENT: HQ Law

Orders

1. That there be final parenting orders BY CONSENT OF THE PARTIES in the terms of the minutes attached to this order which, along with the attached notice prepared under s 65DA(2) and S 62B of the Family Law Act 1975 (Cth), are incorporated into this order.

2. That BY CONSENT OF ALL PARTIES each of the respondents MS FRASER and MR BULL  be, and are hereby, restrained from doing any act, or making any application, to remove the applicant MS OAKSHOTT from her description as “parent” on the birth certificate or record of B born … 2006.

3. That MS OAKSHOTT and MS FRASER have shared parental responsibility for the child on the basis that in the event of a conflict, the decision of MS FRASER shall prevail.

4. That the child’s time with the parties during all school term holidays shall be by agreement AND FAILING AGREEMENT, for one third with each party as follows:

   (a)      With Ms Oakshott for the first period of the holidays;

   (b)      With Mr Bull for the second period; and

   (c)      With Ms Fraser for the third period.

5. That the child’s time with the parties during all long summer school holidays including the Christmas period shall be by agreement AND FAILING AGREEMENT, with each as follows:

   (a)In each year, from the conclusion of school until 3 pm on 20 December, with Ms Fraser;

   (b)In each year, from 3 pm on 20 December until 3 pm on 22 December, with Ms Oakshott;

   (c)In each year, from 3 pm on 22 December until 9 pm on 24 December with Mr Bull;

   (d)From 9 pm on 24 December 2017 until 3 pm on 25 December 2017 and for a similar period in each alternate year thereafter, with Ms Fraser;

   (e)From 3 pm on 25 December 2017 until 5 pm on 26 December 2017 and for a similar period in each alternate year thereafter, with Ms Oakshott;

   (f)From 5 pm on 26 December 2017 until 10 am on 8 January 2018 and for a similar period in each alternate year thereafter, with Ms Fraser;

   (g)From 10 am on 8 January 2018 until 10 am on 18 January 2018 and for a similar period in each alternate year thereafter, with Ms Oakshott;

   (h)In each year from 10 am on 18 January until 10 am on 28 January, with Mr Bull;

   (i)If the child has not commenced the new school year as at 28 January, then from 10 am on 28 January until the resumption of school;

   (j)From 9 pm on 24 December 2018 until 3 pm on 25 December 2018 and for a similar period in each alternate year thereafter, with Ms Oakshott;

   (k)From 3 pm on 25 December 2018 until 5 pm on 26 December 2018 and for a similar period in each alternate year thereafter with Ms Fraser;

   (l)From 5 pm on 26 December 2018 until 10 am on 8 January 2019 and for a similar period in each alternate year thereafter, with Ms Oakshott;

   (m)From 10 am on 8 January 2019 until 10 am on 18 January 2019 and for a similar period in each alternate year thereafter, with Ms Fraser.

6. That the child’s time with the parties during school terms is formally suspended during school holidays and otherwise resumes as school resumes as if it had not been interrupted.

7. That save as to issues of costs, all applications of the parties are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakshott & Fraser and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10205  of 2015

Ms Oakshott

Applicant

And

Ms Fraser

1^st Respondent

And

Mr Bull
2^nd Respondent

REASONS FOR JUDGMENT

1. As this final parenting hearing began about what orders should be made for the child, most of the disputed issues melted away. As the hearing reached its conclusion, all but one issue was left. When, at the very end of the hearing, it came to clarifying what the parties wanted the court to decide, another time-sharing issue arose. Thus, this case is about two issues.  First, how should the adults share the child’s school term holidays; secondly, how should the discrete pre and post-Christmas days and summer holidays be divided?

2. The dispute has lingered for some years and has involved litigation since 2015; it is time to put it to rest.

3. The difficulty in finalising this matter in a court of law is that all of the legal practitioners agree there is no specific legislative guide, or jurisprudential authority, to assist the parties, or the court, in making a decision.

4. B was born in 2006. His biological mother is the first respondent. The applicant is a person who lived in a relationship with the first respondent but that relationship ended in 2014. The details and timing of that relationship were contentious but, because all but these two issues were resolved, the history is now irrelevant.

5. The second respondent is the male who provided the necessary genetic material to enable the child’s conception. Depending upon who was speaking, the second respondent was variously described as “the father”, the “second respondent” and “the donor”.

6. Despite being a complicated parenting dispute, a number of principles can be said to be common to all parties. They were that the child has a good relationship with all parties who were collectively described at various times as his “parents”.  the child enjoys spending time with all of those adults.

7. All of the adults are responsible, caring, dedicated and capable parents. the child would be unhappy, and perhaps unsettled, if there were long gaps away from any of the parents. All of the parents are intelligent and educated people. There are no family violence considerations here. Despite all of that, the issues remain to be determined by court intervention.

8. It is trite to say that any determination of a parenting issue focuses on the best interests of the child involved. The discrete issues here fall within that same focus.

9. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires the court to consider the best interests of the child as the paramount consideration. That means that when making a parenting order, to the extent that parental needs and desires conflict with the best interests of a child, the latter prevails. However, the use of the word “paramount” must mean that it is not the only interest that the court can contemplate. That becomes relevant when I consider the various parental proposals. For example, one parent wishes to be with the child on Christmas Eve because that is a European tradition in his familial culture. Another example is that the first respondent has limited recreation leave from her employment. Thus, wishes of parents are important but the ultimate focus must be on what is best for the child.

10. The Act goes on to provide that the court may (subject to irrelevant issues of the presumption of parental responsibility) make such parenting order as it thinks proper.

11. In deciding whether to make a particular parenting order, and whether that order is proper, the court is obliged to consider the factors set out in s 60CC of the Act. That consideration is mandatory.

12. It is also acknowledged by the parents that although each has a particular proposal which is agitated, the court is not bound by those proposals because of the need to meet the criteria just mentioned.  As Kirby J in U and U [2002] HCA 36; 211 CLR 238 at [137] observed:

    …it is an oversimplification to say that the parties do not define the issues to be decided; the Act does.

13. In CDJ v VAJ [1998] HCA 67; 197 CLR 172 McHugh, Gummow and Callinan JJ poignantly observed at [151]:

    It is a mistake to think that there is always only one right answer to the question of what the best interests of a child requires.  Each judge is duty bound to make the order which he or she thinks is in the best interest of the child.

14. Another consideration which arises out of the use in the Act of the word “proper” is that the child is 10 years old so, although orders are intended to resolve conflict between parents for his childhood years, common sense dictates that as grows older and more mature, he will significantly influence (if not dictate) what times he will spend with the various adults regardless of court-ordered solutions. There is no better indication of that than in respect of medical issues where in the House of Lords decision in Gillick v West Norfolk AHA [1968] AC 112 (albeit in an entirely different context) Lord Scarman said:

    Parental rights … do not wholly disappear until the age of majority … But the common law has never treated such rights as sovereign or beyond review and control.  Nor has our own law ever treated the child as other than a person with capacities and rights recognised by law.  The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. 

15. Gillick received support from the High Court of Australia in Department of Health & Community Services v JWB & SMB ("Marion's Case") [1992] HCA 15; (1992) 175 CLR 218.

16. In this case, one of the influencing factors in determining not only what is in the child’s best interests but also proper, is the evidence of the applicant who, when contemplating how much holiday time should be ordered said that she believe the child would benefit more by not being deprived of a parent but she acknowledged that he would cope with whatever time he spent because he enjoyed being with the relevant adults. 

17. Some of the focus of the parties (sensibly) was on trying to reduce the number of handovers because the child did not like “moving around”.  A problem, but not one about which any real concern was expressed, is that the 2^nd respondent lives in central Victoria whilst the applicant and 1^st respondent live in outer urban Melbourne but in the central Victorian area. Travel of about 45 minutes will be a constant when the child spends time with the 2^nd respondent.

18. The expert witness in this case was psychologist Ms C. She reported in early 2016 that the child had “connections and relationships” with extended family in each of the three households but he expressed concern about the various changes he had to make in “moving” around.  That said, the child was seen to be positive about all of the adults and all were important in his life. All parties were described by him in positive terms.

19. Such were their respective views about parenting responsibility that in 2015, agreement was reached about sharing the child’s time. One of the no-longer contentious issues is that the child will participate in a 4 week cycle as follows:

    (a)In week 1 with the applicant from the end of the school day on Wednesday to the commencement of school on the following Monday (5 nights);

    (b)In week 2, with the first respondent from the commencement of school on the Monday until the end of the school day on the following Monday;

    (c)In week 3, with the applicant from the end of the Monday school day until the commencement of school on the following Friday morning;

    (e)In week 4, from the Friday at the end of week 3 until the following Monday morning with the 2^nd respondent (3 nights); and

    (f)In week 4 with the 1^st respondent from the Monday until the end of the school day on the Wednesday

20. Thus, it will be seen that there is a pattern but the 1^st respondent still has the greater caring time.

21. Turning then to the two issues, each party put forward a proposal noting that the 1^st and 2^nd respondents were largely aligned.

22. In respect of the three school term periods of holidays, the applicant wanted orders providing for:

    ·The 2^nd respondent to have the first 4 days;

    ·The applicant to then have the first half of the remaining portion of holidays in odd years but the second half in even numbered years; and

    ·The 1^st respondent to have the first half of the remaining portion of holidays in even numbered years but the second half in odd years.

23. What can be seen is, on that proposal, the child’s holidays would be divided between his biological mother and her former partner except for the few days at the commencement of the holidays when he would be with his father.

24. The 1^st and 2^nd respondents initially proposed in writing that the child spend the following times:

    ·In term one holidays, 14 days with the 2^nd respondent; and

    ·At the end of term three, 14 days with the first respondent.

25. That proposal would mean that the applicant would have a block period during the holidays at the end of term 2. This proposal was better described as each of the three parties having a block period of time but with small amounts at the start and end for the other two parties. Counsel for the first respondent described the “preference” of the 1^st respondent as follows:

    ·Easter: the 2^nd respondent 3 days, the applicant the whole of the middle save for 3 days at the end with the 1^st respondent;

    ·June: the applicant 3 days, the 1^st respondent the whole of the middle save for the last 3 days with the 2^nd respondent; and

    ·September, the applicant 3 days, the 2^nd respondent the whole of the middle save the last 3 days with the 1^st respondent.

26. Counsel for the 1^st respondent described the respondents’ proposal as “efficient” and the applicant’s as “complicated”. He submitted that this was a pragmatic solution under which travel plans could be made and extended family interstate could be involved.

27. The only obvious drawback (if it is one) is that although each party gets a small portion of each holiday period, the gap in each case in the middle is said to be 14 days. I remain uncertain about that because it seems that the child is attending a private school. The applicant described the holidays as between 20 and 22 days for term 1, 4 weeks plus for the term 2 period and 19 days for the third term. Thus, trying to excise bits at the start and at the end is problematic. That is not because of some question of equality but because of the potential for disagreement about changeover dates. The simplistic analysis of both respondents is attractive if the “middle period” is not so much 14 days but everything other than the 3 days at the beginning and the end.

28. To complicate matters a little more, the 1^st respondent said that her preference was for the third term holidays because she is able to get a block period of 6 weeks holiday then which is otherwise not available at the other times of the year. That led her to say that the other periods such as Easter might coincide with the school holidays but not so in the middle of the year. I was left confused when she added that she could get a week off in those periods in any event. The focus was on, and the pressure associated with, her employment and accordingly, it does not seem likely to be an issue at all.

29. Bearing in mind the nature of the confusion just mentioned and the fact that the parties could not reach agreement without court orders, I have considered that I should be cautious about presuming that outcomes will be easily concluded noting my earlier observation that there is a limited window of opportunity here before the child “votes with his feet”. I add to that a clear picture of mistrust (although I do not consider it prejudices the child) arising out of the adults’ relationship which because of the litigation, has been exacerbated.

30. The other issue that may cause a problem, and needs to be considered for the purpose of deciding how strict a regime the court should make, is that the parties have agreed to orders about decision-making. As can be seen at the start of these reasons, all agreed to an order in the following terms:

    That (the applicant) and (the 1^st respondent) have shared parental responsibility for the child on the basis that (the 1^st respondent’s) decision prevails in the event of any conflict.

31. There can be no doubt about what that means even though the parties have not used the language of the legislation. Rather than such an order focusing on major long-term decisions as defined in the Act, this order relates to all decisions of a parental responsibility nature. The definition of parental responsibility is set out in s 61B of the Act. It provides the following meaning:

    All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

    There is therefore significance in the proposed order for joint responsibility because it covers all responsibilities and not just major long-term issues.

32. Accordingly, there is a need for certainty in a fall-back sense if the parties do not agree to alter the arrangements for such things as work commitments and opportunities as and when they present themselves for interstate and other travel. I consider that because of the limited window of opportunity here, that problem will not exist for too many more years anyway but the child needs to know in advance where he is to be if the parents do not agree otherwise.

33. The underlying philosophy of all parties was one of equity in the holiday area but the dilemma lies in the construction of the times.  The fact that such equality is contemplated by all parties must mean that each has sufficient confidence in the others in relation to the necessary care and responsibility connected with parenting. Further, it must mean that each is confident that the child can manage being away from the others for the period each is suggesting even if one or more of them has reservations about time or the number of handovers.

34. The orders I propose are equality-based for the next few years but they are predicated upon default of agreement. Thus, to make absolutely clear, I am expecting the parties to manage the successive holidays and only to return to the default orders if they cannot reach agreement. In those circumstances, the proper order, and one which best suits the child’s needs, is an equal splitting of all three periods of holidays based on the precise number of days which no doubt the school calendar will provide well in advance.

35. I do not intend the default provision to be some form of rotation based on different seasons and terms. The parties will either work out an arrangement or they will have the same period in each term holidays. That undoubtedly prejudices travel and longer holidays but in the short window of opportunity these parties have, each will know that if they do not communicate an arrangement which is sufficiently flexible to take into account the plans and desires of the others, what will occur in the future will probably happen to them. I accept the submission that travel and planning is important but it cannot take precedence over the interests of the child in this case. That interest is based on the impact of being away from any one parent for too long a period of time.

1. The second dispute concerns the discrete Christmas period.

2. The applicant seeks that the child be with her from 3 pm on 24 December to 3 pm on 25 December.

3. The 2^nd respondent only seeks time from 22 December to 24 December every year. That is to enable participation in a European tradition of celebrating Christmas on 24 December. There does not seem to be any suggestion that the 2^nd respondent does not have that cultural interest. As such, the Act requires the court to consider enabling the child to enjoy that culture too. I am unsure what has happened in the past but I also consider that in the longer term such a period might be more important to the child when he gets well into his teenage years. The proposed orders the 2^nd respondent seeks do not impact on Christmas day although they do affect Christmas Eve because he wants to conclude at 9 pm on 24 December. If that order was made, it would impact on the child because the applicant seeks to have the period from 3 pm on 24 December. The 1^st respondent does not seek to infringe upon the 2^nd respondent’s proposed time because she seeks, as between she and the applicant, to alternate the period from 24 December to 25 December but only commencing at 9 pm on 24 December.

4. Thus, this almost bizarre dispute which is complicated by the shuffling around of hours and days is only about a period of 6 hours from 3 pm to 9 pm on Christmas Eve.

5. Nothing in the evidence assists in determining such a solution. As counsel for the applicant rather aptly put it, there is “no frame of reference” for this issue.

6. The equity issue again comes to the fore. All parties consider that the child should spend time with them doing what they want as distinct from what the child needs. Both of the proposals of the applicant and the 2^nd respondent about the 6 hour crisis still mean that the child spends some time with them. It may mean that the child returns tired from the Christmas Eve festivities at 9 pm and has to rise to the challenge on 25 December in another household and do it all again. Comforting however, is the fact that it is holiday time and if he decides it is all too much for him, he will in the fullness of time, just vote with his feet. The more important point is my earlier observation that the very fact that the parties are litigating over such an issue means that the court ought be cautious about presuming that the parties could work these issues out without orders. A dispute over 6 hours indicates otherwise in circumstances where the equity issue at least for the child (as distinct from the adults) is self-evident.

7. As between the 1^st respondent and the applicant, the issue about Christmas is another simple one. On the face of the applicant’s proposal, the same structure would occur every year but the 1^st respondent would prefer that time be alternated (and obviously from 9 pm on 24 December).  In the spirit of equity, the applicant’s proposal would mean that the child would still spend Christmas Day with both parents but I suspect (and it can be no more than that) because of his present age, he might prefer to share the excitement of Christmas morning and lunch in both households. As there is often said to be a difference for a child between Christmas morning and the following evening, I consider it would be better to alternate that time.

8. For those reasons, the orders at the commencement of these reasons are in my view, in the child’s best interests if the parents cannot work out a better solution.

9. In relation to the various provisions of s 60CC of the Act, the following are findings.

10. In respect of s 60CC(3)(a), the child has made clear his views about not wanting to “move” but with the disagreement between the parties, there is little choice. There was evidence and also discussion about reducing the number of changeovers but in reality, with the absence of any significant evidence, even a handful less changeovers will make little difference. The evidence of the applicant is that the child was resistant to alteration of his times with all adults. In my view, even with his age, it is hard to say whether he is sufficiently mature to understand the concept being considered. As at least two of the parties seemed to agree, the child is a happy child who will go where he is directed and will enjoy the various relationships even if he gets tired. The parties will have to watch that, as time quickly goes by, the child may tire not of the changeovers but of being involved at all. Because of that, I have prefaced every order with the timetable only being imposed if agreement fails.

11. In respect of s 60CC(3)(b), (c), (e),(f) and (i), I rely on the comments above. No party indicated that adverse findings could or should be made about the other parties.

12. In respect of s 60CC(d), the focus is on the impact of change upon the child being away from any party. Each seemed to contemplate that as an issue but all seemed to say that they would manage it. I was not urged to make any findings to the contrary.

13. In s 60CC(3)(j) and (k), the court must look at issues of family violence for the purposes of protecting a child. Other provisions such as s 60CF and s 60CG are similarly concerned to ensure that a child is not exposed to family violence. Here, no such concern was agitated.

14. In s 60CC(3)(l), the court is mandated to consider whether any particular order will least likely lead to the institution of further proceedings about the child. As I have earlier observed, the parties are intelligent and generally focused people although these proceedings might suggest otherwise. It was unfortunate that the case went as far as it did with two out of the three parties being cross-examined on issues that trawled over aspects of their respective lives that they might now regret but the fact is there was no suggestion other than that they were all very child-focused on the only child they have. They do not need further dispute let alone litigation and for that reason, I have put into place what I consider to be a fall back order if agreement cannot be reached whilst their feeling are still raw and their communications consequently strained.

15. Section 61DA also requires that a court apply a presumption when making a parenting order that it is in a child’s best interests that the parents have equal shared parental responsibility and then provides two bases on which that presumption can be ignored or rebutted. In this case, it is not necessary to contemplate that provision further not the provisions of s 65DAA as all parties have assured the court that the consent orders that they promote are in the child’s best interests.

16. In my view, these orders are just that.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 February 2017.

Associate: 

Date:  27 February 2017