PADDON & JORDAN

FEDERAL CIRCUIT COURT OF AUSTRALIA

PADDON & JORDAN

[2015] FCCA 1423

Catchwords:
FAMILY LAW – Child aged 11 years – arrangements for school holidays – father lives in Perth – mother lives in Darwin – parties have poor and mistrustful relationship – parties have agree on sharing parental responsibility equally – frequency of school holiday visits – benefits for child of meaningful relationship – best interests – matters to be considered – practicality.

Legislation:

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

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
D & SV (2003) FLC 93-137
Godfrey v Saunders (2008) FLR 287
Meyer & Shipton (No.2) [2013] FCCA 2198

Applicant:

MS PADDON

Respondent:

MR JORDAN

File Number:

DNC 309 of 2014

Judgment of:

Judge Brown

Hearing date:

21 May 2015

Date of Last Submission:

21 May 2015

Delivered at:

Adelaide

Delivered on:

28 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Barry

Solicitors for the Applicant:

Darwin Family Law

Counsel for the Respondent:

Mr Ryan

Solicitors for the Respondent:

Bostock & Ryan

ORDERS

That the parties have equal shared parental responsibility for the child X, born (omitted) 2003 (“X”).
That X shall live with the mother in the Northern Territory.
That X shall spend time with the Father as follows, except as otherwise agreed between the parties:
(a)For the duration of the mid-year WA school holidays or for as much of those holidays as is possible such that X does not miss any school;
(b)During the NT school holidays at the end of terms 1 from Saturday to Saturday;
(c)During the NT school holidays at the end of terms 3 from Saturday to Saturday;
(d)During the 2016 NT school holidays from 16 December 2016 to 16 January 2017 (or such other dates as is required to accommodate the child’s planned overseas trip), but otherwise during the Christmas school holidays as detailed in order 3(c).
(e)During the Christmas school holidays as follows, except as per order 3(d):
(i)in even numbered years for the first 3 weeks of those holidays commencing at the conclusion of the WA and NT school terms but not before the NT school term concludes; and
(ii)in odd numbered years for 3 weeks of the Christmas school holidays commencing on 26 December each year.
That in relation to X’s time with the father, unless otherwise agreed between the parties, X:
(a)shall be returned to the mother on a Saturday, if the following week is a school week;
(b)Except for the purpose of order 3(d) and 3(e) (b) X shall depart Darwin on a Friday, but no earlier than 4.00 pm if that day is a school day, and the next day if a flight is not available earlier than 4.00 pm.
(c)shall not travel back to the mother on flights which arrive after 11.00 pm.
That the father shall purchase all plane tickets for X relevant to and consistent with these orders (excluding travel overseas) and shall provide the mother with evidence of same by email within 48 hours of payment, and further the mother shall reimburse the father 50% of those costs within 28 days of the fathers email.
That in the event of the Mother is travelling to the Perth metropolitan area for any period of time with X:
(a)The Mother shall provide the Father with 2 weeks prior written notice of her intention to return to Western Australia and the length of her stay; and
(b)The Father may spend time with X for a minimum of 2 days with X during that stay or such other amount as the parties shall agree.
In the event of the Father visiting Northern Territory for any period of time not defined as above, the Father shall provide the Mother with 2 weeks prior written notice of his intention to visit and the Father shall be entitled to spend time with X during his stay as the parties shall agree.
That both parties may have a liberal communication with X while X is in the other parties care, X is to be encouraged to communicate with the other party by telephone, Skype, internet, other electronic communication and e-mail, and the father shall not call X after 8.00 pm NT time if the following day is a school day.
If one party (party 1) attempts to call X but is unsuccessful party 1 shall text message the other (party 2), and party 2 shall reply by text message and advise of an alternative time, within 24 hours of the original call, when party 1 may call X. Should the second call fail both parties shall make appropriate efforts such that party 1 can speak to X as soon as possible thereafter.
For the purposes of the parties communicating with each other in respect of X:
(a)For ordinary communication, the parties are to communicate via email or SMS text message; and
(b)For urgent communication, the parties are to communicate via telephone or SMS text message and keep each other informed of all relevant information regarding such urgent circumstances.
That neither party shall take X to any country that has a current Australian Government warning which recommends against persons travelling to that country for tourism or like purposes.
That should X be overseas the party who has taken him overseas shall text message or email the other upon X’s arrival at his destination within 48 hours of his arrival.
That should either party refuse to sign a passport application this order shall serve as an authority of that party, for the purpose of a passport application, and further the mother shall retain X’s passport, and when X has been overseas with the father it shall be returned to the mother at the same time as X is returned to her.
That should the father seek to take the child overseas, the mother shall provide the passport to the father at least 60 days prior to the date the child is due to travel.
The parties must give each other at least 30 days’ notice before taking X interstate or overseas and must provide each other with an itinerary of their travel plans whilst away.
During any period of interstate or overseas travel, the party with the care of X shall ensure that X communicates with the other party at least once a week by any form of communication or technology.
This order authorises X’s school to provide the Father with copies of any school reports, and access to any portfolio work of X, reports on behavioural issues, school circulars or notices concerning functions, parent/teacher nights and other school activities to which parents are invited, as soon as practicable after they are issued.
That the mother shall include the father in copies of all email correspondence of a significant medical, counselling and/or educational nature.
X shall spend time with his maternal grandparents in Western Australia at times to be agreed between the Father and the maternal grandparents.
That the parties will keep each other promptly informed as to any emergency, illness or medical concerns in relation to X in a timely manner and if there are any matters of an urgent nature, the parent who has the care of the child will notify the other parent immediately.
That each parent shall be entitled to obtain copies of X’s school and health-care records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.
That each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within 3 days of any change.
That should either party so request it, at any time after X turns fourteen years of age, the parties shall engage in child inclusive mediation, and should X seek a change to the current orders, the parties shall discuss possible changes and should the parties not be able to reach agreement after obtaining a Section 60 (I) certificate either party may initiate proceedings notwithstanding the rule in Rice & Asplund.
In the event that the parties cannot come to a joint decision about a major long term issue regarding X, or disagree about the interpretation of these orders, they shall do all things necessary to participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNC 309 of 2014

MS PADDON

Applicant

And

MR JORDAN

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern a discrete but important issue to the parties concerned. X, the young lad at the centre of the issue, is almost twelve years of age.[1]
[1] X born (omitted) 2003
X’s mother is Ms Paddon. X lives with his mother at (omitted), a rural area (omitted) of Darwin in the Northern Territory. Ms Paddon is the applicant in these proceedings. She is a (occupation omitted) at (employer omitted).
X’s father is Mr Jordan. Mr Jordan lives in (omitted), in suburban Perth. Mr Jordan is the respondent in the case. He is a self-employed (occupation omitted).
The parties, to their great credit, have resolved most of the complex issues, which this case throws up. These issues centre on the vast distance between Perth and Darwin and controversy surrounding how X came to live in Darwin, where he has lived since late 2013.
The father and mother, after the preparation of a family report by a social worker, Ms G, have agreed that X should continue to live in Darwin and spend time with his father, during school holidays, in Perth. They have also agreed on X having an overseas holiday, with his father, in the long holiday period of 2016/2017.
Other detailed consent orders are to be made dealing with school reports, medical information and communication issues. It is also agreed that the parties will share equally the costs of X travelling between Darwin, Perth and return for school holidays.
Implicit in the proposed orders is that the parties should share equally responsibility for making major long-term issues to do with the parenting of X. The concept of major long-term issues is defined in the Family Law Act 1975. It includes major decisions to do with X’s care, welfare and development, particularly his education and health.
The clear import of the orders is that both parties should remain significantly involved in all aspects of X’s life, notwithstanding the vast distance between Perth and Darwin. Given this agreement, it is clear that both Ms Paddon and Mr Jordan are strongly committed to X and love him dearly.
Notwithstanding their agreement about X and their shared love for him, there remain many differences between the parties. Over the last decade or so, they have led widely divergent lives and now have very little in common. It is likely that there are significant differences between them in respect of how they each approach the task of parenting X.
Where the parties chiefly disagree is in respect of one discrete issue regarding how time is to be allocated, for X, to spend time with his dad in school holidays, particularly whether X should spend three or four holiday periods, each year with his father.
The difficulty is compounded by the fact that the school holidays in Western Australia and those in the Northern Territory are not exactly synchronised. Although in both locations, there are twelve weeks of school holidays each school year.
In both Western Australia and the Northern Territory, the school year is divided into four terms. In both locations, the end of year school holiday is six weeks in duration but, in 2015, will start a week earlier in Darwin.
In the Northern Territory, the custom is for there to be a four week holiday between the second and third term. The same practice occurs in Western Australia, but this period overlaps for only about a fortnight with the Northern Territory.
In Western Australia, there is a two week vacation between the end of first term and the beginning of second term. In the Northern Territory, unless there is the intervention of Easter, the period of vacation is one week at this time.
In Western Australia, there is a longer school holiday between third and fourth time than that which occurs in the Northern Territory, where the practice is for there to be around a one week holiday starting on the last Friday of the term, which ends when school resumes a week on Monday.
In the family report, Ms G assessed the mother and X as having a close relationship with one another. She characterised Ms Paddon as having a parenting style, which was sensitive to X’s needs.
Ms G also found X to have a close bond with his father and to be a child who had enjoyed spending time with his cousins and extended family, both on its paternal and maternal aspects, in Western Australia.
In this context, Ms G recommended that X should continue to live with his mother, but that Ms Paddon should give earnest consideration to returning to live in the Perth area.
From the mother’s perspective, this proposal is impracticable, given that she has obtained well remunerated employment in Darwin and is now happy and well settled, with her current partner, Mr S, in the Northern Territory.
Equally it is not possible for Mr Jordan to move away from Perth, where he has always lived and where he has strong connections. To his credit, Mr Jordan is not proceeding with his application for X to live with him in Perth. However, for understandable and human reasons, Mr Jordan wishes to spend as much time as possible, with X, during school holidays.
In this context, Ms G recommended as follows:
“X spends time with his father for half the Northern Territory School holidays and the exact arrangements are agreed via mediation.”[2]
[2] See family report dated 14 January 2015 at page 41
The parties have been able to resolve the issue of how the end of year and mid-year school holidays are to be allocated. They have agreed that X will spend a period of three weeks, during the long school holiday, which alternates between the first and second portion of the holiday, so that X will be able to spend the festive days of Christmas with his father and mother alternately.
In respect of the mid-year school holiday, the parties have agreed that X should spend as much of the mid-year Western Australian school holiday with his father in Perth as possible, so long as he does not miss any school in the Northern Territory. In generic terms, this means that he will spend about two weeks in his father’s care each year.
Accordingly, if X is to spend exactly half of the entire school holiday period in arithmetical terms, with his father, it means that he must spend either the end of term one holiday with Mr Jordan, or the end of term three school holiday with him.
This is the mother’s preference, which she submits is strictly in keeping with Ms G’s recommendation. She proposes that the term one and term three holiday from year to year. She seeks that the following orders be made:
During the NT school holidays at the end of terms 1 in even numbered years from Saturday to Saturday.
During the NT school holidays at the end of terms 3 in odd numbered years from Saturday to Saturday.
It is Mr Jordan’s position that it would not be in X’s best interests for him not to have face to face interactions, with his father, for a period potentially in excess of five months each year. On this basis, he seeks to spend time with X at the end of both term one and term three in each school year.
This would mean that he would spend approximately seven weeks of each twelve holiday allocation with X, which is not strictly in accord with Ms G’s recommendations. However, from Mr Jordan’s perspective, given that X will spend the vast majority of the year, with his mother, this modest allocation of time in his favour, can easily be justified.
It is this issue which the court must resolve. As I characterised it earlier, in my view, it is a discrete but important issue. It is not one which can be determined capriciously or arbitrarily by the metaphorical toss of a coin.
Rather, the issue must be determined by the court closely considering X’s best interests. In this context, both parties can muster cogent arguments, as to why their position should be preferred.
X is a child with significant special needs. It is common ground that X has only recently begun to go to Perth from Darwin to spend time with his father. From Ms Paddon’s perspective, in these circumstances, the issue must be approached cautiously and sensitively. In addition, it is her perspective that X will benefit from being able to spend some holiday time with her, during the school year.
From Mr Jordan’s perspective, he contends that X and Ms Paddon will enjoy every school weekend together, including the many long weekends, which arise during the year. It is his case that X will derive incomparable benefits from having a strong paternal role model in his life. In this context, it is Mr Jordan’s case that X needs to have a sense that his father is committed to him and is therefore a living presence in his life.
On this basis, Mr Jordan contends that the court should ensure that X spends as much time with his father as can be reasonably permitted given the difficult geographical circumstances, which prevail. Otherwise, Mr Jordan contends that X will not have a sufficiently meaningful relationship with his father, as is envisaged by the applicable provisions of the Family Law Act 1975.

Background

The mother commenced these proceedings on 7 July 2014. She sought orders that would have legitimatised the arrangement, which have resulted in X living in Darwin with her from early 2013 onwards. The father responded to this application on 21 October 2014. He sought orders that would have resulted in X living predominantly with him, in Perth.
As previously indicated, with the release of Ms G’s report and a process of negotiation between the parties’ respective solicitors, the parties have been able to agree on a raft of orders to do with X, the most significant of which is that he will continue to live in Darwin with Ms Paddon.
However, this resolution has come about fairly recently. Prior to this, what lawyers categorise as a relocation case – that is one characterised by a situation where the parents concerned live in circumstances separated by significant distance – was listed for trial before the court on 19 May 2015. As a consequence of the agreement reached between the parties, the trial was not needed.
In these circumstances, the parties agreed that the remaining issue, as to school holidays, could be resolved by me reading the parties’ respective affidavits for trial and the family report of Ms G and that thereafter each party’s solicitor should make brief written submissions. Lawyers characterise this as a hearing on the papers.
This hearing took place on 21 May 2015, with Mr Jordan and his solicitor Mr Ryan attending the court by telephone. Ms Paddon was not able to attend court because of her school commitments. She was represented by her solicitor Mr Barry.
Accordingly, I was not able to see each party directly or hear either of them answer any particular question. As such, I could not form my own impressions of their character and personality. I have however no doubt that they are each good people and committed to X’s best interests.
However, it is Ms G’s view that the parties are quite different in personality and, as such, bring different skills and strengths to the parenting of X. This sentiment appears to me to be largely axiomatic. It is also apparent to me that the parties share no good will and have little respect for one another.

It was also Ms G’s view that X was more than a little perplexed and stressed by what he perceived to be the conflict and disputation, which surrounded him and his care. In this context, X made the following rather sad, but, in my view, highly significant comment about himself and his parents:
“Dad says Mum lies. They just don’t like each other. I should be cloned or I shouldn’t exist so nobody fights.”[3]
[3] See family report at page 27
Whatever order the court ultimately makes, I wish to reduce the tension and strain currently being felt by X. The parties need to be mindful that X is not responsible for the current difficult situation, which has been created in this case. The various disputes between the parties are their disputes, not X’s. He is entitled to have a happy and carefree childhood. In this sense, X’s childhood belongs to him and not to his parents.
Accordingly, I am regretful that I must make this significant decision for X. The extra week of holidays is not to be awarded, like a prize, to the parent whom I consider is the more praiseworthy. Nor, is the extra week, with X, to be awarded as compensation to the parent who feels more hard-done by.
However, I am well aware that in making the decision, which I must make, I will create a scenario where one party feels that he or she has either lost or won. In so doing, I am fearful that I may cause more bitterness between the parties and renew the unacceptable conflict which remains between them with possible deleterious consequences for X.
This is not my intention. If it was at all humanly possible, I would prefer to impose an outcome which was strictly equal in terms of how school holidays are to be divided, as recommended by Ms G. However, this is not possible and a decision must be made.

Chronology

The mother was born on (omitted) 1975. The father was born on (omitted) 1972. They commenced a de facto relationship in early 2003. They separated when X was an infant.
At the time of their separation, the parties lived in the area of Perth. On 26 September 2007, consent orders were made in the Magistrates Court at Perth dealing with arrangements for X’s care. These orders were reached following an extensive process of mediation.
The orders provided for the parties to share parental responsibility for X’s long term care, welfare and development. They also agreed on a regime, which saw X spending approximately half of every week with each of his parents.
The orders also envisaged the mother taking up residency, in (omitted) and for the orders to be revisited, through a further process of mediation, at the start of the 2011 academic year. (omitted) is approximately three and a half hours south of Perth.
In early 2007, X was diagnosed as suffering from a global developmental delay by Dr A, a paediatrician. Dr A also considered that X was displaying multiple behaviours common to autism. He was referred to speech therapy.
The shared care arrangement remained in place from late 2007 until October 2010, when the mother and X moved to (omitted). It is Mr Jordan’s evidence that, with the move, his time with X became limited. He was also concerned that weekend time, between him and X, was disruptive for the child. In these circumstances, he elected to forego some of his time with the child.
In mid-2012, Ms Paddon and X moved again, this time to (omitted), which is approximately two and a half hours north of Perth. From Mr Jordan’s perspective, it was more difficult for him to visit (omitted). It is further Mr Jordan’s evidence that the move to (omitted) was not well handled, particularly because he was not consulted about it.
It is Ms Paddon’s evidence that for the last four years or so, Mr Jordan has had little involvement with X’s life. She views X as a vulnerable child, who has a need for routine and familiarity, particularly because of his special needs.
On the other hand, it is Mr Jordan’s perception that Ms Paddon has not supported his relationship with X as actively as she should. From his perspective, it is now essential that he (Mr Jordan) be reinserted, into X’s life, as an active and living presence.
Against this difficult background, Ms G assessed the parties as having:
“… a nil effective co-parenting relationship. Their relationship is characterised by entrenched distrust and minimal communication. One of the consequences for X is that he is at times used as a messenger both directly and indirectly for communicating between parties.”[4]
[4] See family report at page 38
Both parties have re-partnered. The mother lives with Mr S, who is a (occupation omitted). Mr Jordan has married. He and Ms L have two children, A aged eight and B aged five. The family occupy a comfortable home in (omitted).
In late 2013, Ms Paddon gave up her employment at (employer omitted) and decided to go on a road trip around Australia with Mr S and X. They got as far as Darwin, where the mother was offered a good position, as a (occupation omitted), at (employer omitted). Previously, she had only been able to work as an (occupation omitted). Mr S also obtained employment.
It is Ms Paddon’s position that she, Mr S and X are well settled and happy in Darwin. It is her perspective that she is the most important person in X’s life, as she has been his main provider of care, during the entirety of his life to date, but particularly for the last four years. She wishes to remain living in Darwin and has no desire to return to Western Australia, at this stage.
Again, from Mr Jordan’s perspective, the mother’s move to Darwin was mishandled. He feels that he was not properly consulted and the mother has not been completely frank with him about her plans. It is his perception that Ms Paddon is manipulative and disingenuous and does not support his relationship with X.
Mr Jordan is upset that he has not been able to spend many Christmases with X or share X’s birthday with him over the past few years. He feels that he has been shut out of X’s life, as a consequence of the mother’s attitude towards him and her peripatetic lifestyle.
It was against this background that he brought his application for X to move to live with him and his two half siblings, in Perth. It is Mr Jordan’s evidence that X has twenty-six family members, on both his maternal and paternal side, who live in the Perth area. On the other hand, in Darwin, he has only his mother and Mr S.
On the other hand, it is the mother’s perspective that X is doing very well in Darwin, where he attends (omitted) Primary School. At this school, he has been allocated a special learning program and has ready access to paediatric and psychological treatment. Recently, X has been formally diagnosed as suffering mild autism.
It is also Ms Paddon’s case that she herself is immeasurably better off financially, whilst she lives in the Northern Territory. She earns a salary of $90,000.00 per annum, compared to her salary of $47,000.00 per annum as an (occupation omitted). Mr S also enjoys a comfortable income. Ms Paddon is able to shape her work commitments around her responsibilities to parent X.
In this context, Ms Paddon deposes as follows:
“Because of my improved financial situation, I can afford to fly, 3 times to WA at my expense, so that X can in fact to spend more time with Mr Jordan from here on, then he is spent with Mr Jordan in the last few years.”[5]
[5] See affidavit of Ms Paddon at paragraph 48
At present, X speaks with his father, by telephone, approximately one or two times per fortnight. X also spent three weeks of the Christmas 2014 school holidays, with Mr Jordan and his family, in Perth. I understand that there was also a visit earlier this year.
Ms G interviewed both Mr S and Ms L for the family report. Ms G had no concerns about Mr S’s involvement with X. Ms L indicated that she had never had a good relationship with the mother. Ms L also described some personal difficulties in how she (Ms L) interacted with X.
Ms G considered that X presented as lacking self-esteem and of being a disturbed child, who had been caught in the cross fire of his parent’s disputes and to a lesser extent their respective partners.
Ms G also considered that the parties themselves had very different parenting styles and their respective experiences of life had left them with little or nothing in common, apart from their parentage of X. Ms G opined as follows:
“Ms Paddon and Mr Jordan have very different parenting approaches and lifestyles which is likely to be contributing to their ineffective co-parenting. Mr Jordan prefers an authoritarian and direct approach where there is a strong focus on education and outdoor activities. Ms Paddon takes a more relaxed and sensitive approach to parenting and activities appear to be focussed close to their home. The consequence for X is that he has to adjust to very different and competing expectations for him when he is in the care of his respective parents.
Historically X has been required to make multiple adjustments as a result of relocating between the parties and with parties. He has also had to adjust to at least three different constitutions associated with his family being blended and re-blended. The multiple adjustments that X has had to make are likely to have been challenging for him and is associated with a loss of social capital and formation of strong supportive social networks.”[6]
[6] See family report at paragraphs 122-123
From Ms G’s perspective, the chief benefit of X remaining in his mother’s care was her sensitive parenting and insight into X’s special needs. It was also Ms G’s assessment that X was very close to his mother and enjoyed Mr S’s company. However, Ms G also considered that Ms Paddon’s communications, in the past, with Mr Jordan, had lacked transparency and she had not been fully supportive of X’s paternal relationship.
Ms G assessed X as having a close bond with his father and being a child who had enjoyed spending time, particularly with A and his cousins in Western Australia. Ms G considered that the opportunity for X to interact with relatives in Western Australia would add to the child’s social capital.
By this, I assume Ms G means that X’s self-esteem will grow, if his relationship with his father and wider family is enhanced through regular visits to Western Australia and he will become a more assured child, which is important given his learning difficulties and autism.
However, as previously indicated, Ms G was not in favour of any abrupt changes in X’s living arrangements. She did however consider that it was important for X to maintain his paternal relationships. This was the rationale for her generic recommendation that the school holidays be divided equally.

The legal principles applicable

Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[7]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9]
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

Parental Responsibility

Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
In this case, the parties agree that they should have equal shared parental responsibility for X. Thankfully, this is not a case to do with family violence, neglect or abuse. In these circumstances, neither party asserts that the presumption arising under section 61DA is rebutted in any way.
However, it should be noted that the presumption relates to the allocation of parental responsibility, not the strict allegation of time, which a child spends with either of his or her parents. The section and the presumption which it creates, does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where the child is to live. Such matters are specifically dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
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 child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[10]
[10] See MRR v GR (2010) 240 CLR 461 at [13] & [15]

Conclusions

In this case, because of the great distance between Perth and Darwin, it is clearly impracticable for X to spend either equal time or substantial and significant time with his father. X must live more with one parent than the other.
Given the contents of Ms G’s report and the fact that X has lived predominantly with his mother over the last few years, the parties have agreed that there should not be any significant disruption in X’s care arrangements. Mr Jordan is to be congratulated for making this concession.

However, notwithstanding this concession, the court must still consider the benefits X is likely to derive from having a meaningful level of relationship with his father, notwithstanding the practical difficulties, which arise in the case, particularly the tyranny of distance.
I accept that X has a significant level of relationship with his father, notwithstanding the interruptions to which it has been subjected over the past few years. It is clear from Ms G’s report that X is comfortable in his father’s care and has adapted well to spending time with his father and other family members, particularly over the Christmas period of last year and more recent holiday periods.
Undoubtedly, X also enjoys a close relationship with his half-siblings and other members of his family, who live in Perth. It is likely to be in X’s best interests that these various relationships are fostered, notwithstanding the difficulties created by distance.
The central question, in the current case, is how these various relationships, particularly X’s relationship with his father may receive the requisite level of meaning, notwithstanding the significant logistical difficulties arising in the case.
X will soon be twelve years of age. It seems to be the case that he is able to converse, with his father, on the telephone. Given his age, notwithstanding his special needs, it seems that he has some conception of issues to do with time and distance. He is not of such an age that he will forget his father between school holiday visits. As such, it seems likely that his relationship with his father is of sufficient robustness to withstand the vicissitudes of distance.
Accordingly, it seems more likely than not that X will be able to maintain a meaningful level of relationship with his father during school holiday visits. Older children are frequently able to maintain their relationships with people significant to them, including a parent, by less frequent periods of quality time, spent in school holidays, which is supplemented by other forms of communications, such as telephone, webcam or letters.[11]
[11] See D & SV (2003) FLC 93-137 at 78,280
As Kay J pointed out in Godfrey v Saunders[12] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. This is the nub of the present case, in my view. From the mother’s perspective, X will be able to have a sufficiently meaningful level of relationship with his father, if there are three holiday periods each year.
[12] See Godfrey v Saunders 2008 FLR 287 at 298
From Mr Jordan’s perspective, such a regime will be inadequate as it will not ensure that X has a sufficiently meaningful level of relationship with his father and he will not benefit, to the extent envisaged by the Act, in either the short or longer term, from having a loving and interested father.
Underpinning Mr Jordan’s position is his view that X had a need to spend more time, with his mother, when he was an infant, but that now he is a pre-adolescent, he has a greater need to spend more time with his father, who is in a position to provide X with a strong paternal role model.
I accept that X is likely to benefit from spending as much time as is reasonably practical with his father, and it is likely to be helpful to him, if he is regularly exposed to Mr S, whom I accept is a good role model for X.
In Meyer & Shipton[13] I said as follows:
“The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
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 his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
[13] See Meyer & Shipton (No.2) [2013] FCCA 2198
If I accede to Ms Paddon’s position, X will potentially go for up to five months, without having a period of face to face interaction with his father. In my view, this is a significant period of time and is likely to be deleterious to X’s best interests. In my view, it is just too long, given the previous interruptions to X’s relationship with his father.
I accept that X will benefit from having a meaningful level of relationship with his father. The two do need to interact with one another in as wide a variety of contexts as is possible. This will be difficult given the distance between Perth and Darwin and the expense of travelling between the two locations.
In an ideal world X and his father would see each other every few days in order to touch base with one another and exchange details about the day to day details of their respective lives. They need to have an ability just to hang out together, without doing anything in particular. This is in order to ensure that they have an easy intimacy and warmth with one other.
Under the present situation, this exchange of information can only occur on the telephone or through some other form of electronic media, which is no substitute for face to face contact. From Mr Jordan’s perspective, he is apprehensive that his relationship with X will become stilted and awkward if it is maintained only in this way, without regular refreshment by direct physical contact.
I can appreciate why he would hold such a view. He is fearful that he will be consigned to the role of holiday dad or a parent who only interacts with his child in the more carefree and less organised confines of the vacation. As such, X’s relationship with his father will not be as multi-faceted as the relationship which he has with his mother, based as it is on a myriad of shared day to day experiences and therefore his paternal relationship will inevitably be less meaningful than is his maternal one.
Clearly, there is no easy or obvious solution to this dilemma given the distance between Perth and Darwin and the inability of either party to move. However, given the structure of the Act, the court is still obliged to consider the benefits of X having the most meaningful level of relationship with his father as is reasonably practicable in the prevailing circumstances.
In my view, this situation dictates that X should spend as much time as is practicable in his father’s care. The rationale being that this will add meaning to his paternal relationship and obviate the risk of it becoming a stilted or awkward one because father and child do not know one another with a sufficient level of warmth or intimacy because there has been an infrequency and irregularity in interaction between them.
The parties are fortunate to be comparatively well resourced financially and to be able to bear the costs of the travel involved. The mother previously volunteered to pay for three trips per year and subsequently the parties have agreed to share the costs of travel for X.
In my view, these factors militate more in favour of the father’s proposal than that of the mother. X’s relationship with Ms Paddon is very secure. It will not be disrupted by a diminution in the amount of vacation time. The same is not true of X’s relationship with his father, which in my view is vulnerable to the vicissitudes of time and distance.
In my view, it would not be in X’s best interests for him to go for potentially four or five months each year without having face to face contact with his father. Such a situation would not assist him to have a meaningful level of relationship with his father.
For these reasons I will make the orders, in respect of holiday time, as proposed by Mr Jordan. I will also make all the other orders on which the parties have agreed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 29 May 2015

[2015] FCCA 1423

28 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness