Parrone and Parrone

FAMILY COURT OF AUSTRALIA

PARRONE & PARRONE

[2009 ] FamCA 899

FAMILY LAW – CHILDREN – With whom children spend time

APPLICANT:

Mr Parrone

RESPONDENT:

Ms Parrone

FILE NUMBER:

PAC

521

2008

DATE DELIVERED:

4 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

STEVENSON J

HEARING DATE:

6 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

SOLICITOR FOR THE APPLICANT:

Levy Partners

COUNSEL FOR THE RESPONDENT:

Mr Dwyer

SOLICITOR FOR THE RESPONDENT:

Hozack Clisdell Lawyers

Orders

That all existing orders in relation to the children:
A born on … March 1994
C born on … June 1996
S born on … June 2001
are discharged.
That the children C and S live with the mother at all times other than the periods specified in order 3, during which they will live with the father.
That C and S live with the father during the following periods:
3.1during school term time, from the conclusion of school on Friday until the commencement of school on Tuesday in each alternate week, commencing on 7 August 2009 and
3.2during school term time, from the conclusion of school until 8:00pm each alternate Thursday, commencing on 13 August 2009
3.3for one half of all school holidays, as agreed by the parents
3.4on special occasions, as agreed by the parents
That the parents are at liberty to vary the arrangements prescribed by these orders by agreement between them from time to time.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 521 of 2008

MR PARRONE

Applicant

And

MS PARRONE

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Parrone (“the fater”) and Ms Parrone (“the mother”) are the parents of three children:
A born in March 1994 (15)
C born in June 1996 (13)
S born in June 2001 (8)
The father and the mother as to the amount of time which their children should spend with each parent.
The father sought orders that C and S live with him and their mother in a week-about equal time arrangement. Having read the Family Report, he was content to allow A to make her own decisions as to what time she spends with him. There is no doubt that A will continue to live with her mother.
The mother sought orders that C and S “spend defined time with their father” from the conclusion of school on Friday until Tuesday morning in each alternate week and from after school until 7:30pm on Thursday in each other week. They would spend alternate weeks with each parent during the school holidays, unless the parties agree otherwise.

Background

The father, who is now 52, and the mother, who is now 41, married in 1993 and separated finally on 23 August 2005. They lived in the central coast region during the marriage and both remained there after the separation. Presently they live approximately 5 minutes travelling time from each other.
During the marriage the father worked long hours in his family business. He often worked seven days per week. In November 2006 he retired from the business and has since worked “casual hours”.
After their separation the father and the mother made arrangements for the children to spend time with him. They usually saw their father on weekends, due to his work commitments.
On 12 September 2008 interim orders were made, which contained a notation: “the children, particularly [C] and [S], spend time with their father on five nights in each fourteen day cycle as arranged between the parties”. On the same day, an interim order was made that the father care for the children whenever the mother was required to work two or more consecutive shifts which began at 6:00am. She is employed at a local supermarket.
The mother chose to resign from her employment, as she took the view that this arrangement would be too disruptive for the children. Her employer declined to accept her resignation and arranged for her to work alternative shifts. The pattern of C and S spending five nights per fortnight with their father has continued to the present time.
A makes her own arrangements to spend time with her father. It seems that she spends little face-to-face time with him but she is happy to speak with him by telephone frequently. As appears below, the Family Consultant was of the view that A’s decision reflects her developmental stage, rather than any difficulties in her relationship with her father.
The mother is in a committed relationship with Mr K, who is a public servant in the central coast area. He spends a lot of time with her and the children but retains his own home. He has two daughters, whom he sees frequently and who are acquainted with the children.
The father has not re-partnered. He has a close-knit extended family in the town. He and the girls spend a lot of time with their paternal relatives.

The Evidence and Witnesses

The father relied on his affidavit sworn on 25 June 2009. The mother relied on her affidavit sworn on 16 April 2009. Both parties gave relatively short oral evidence.
I accept that both parents were truthful witnesses who love their children dearly. I do not accept the submission on behalf of the mother that the father is “a wily character” who was evasive in his evidence. He seemed to me to be a genuine, sincere person, as did the mother. For reasons which appear below, I found him to be somewhat lacking in understanding of the girls’ emotional needs and developmental stages.
I had the benefit of a report dated 23 October 2008 and oral evidence from Family Consultant Ms P. I found the evidence of Ms P persuasive and very useful.

Approach To These Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters this statutory conferral.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4).
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2).
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. The legislation contains no temporal definition of “substantial and significant time”. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement.
If there is no order for equal or substantial and significant time, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

The Primary Considerations: Section 60CC(2)

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

In her affidavit the mother said: “from my observation all three children have a meaningful relationship with each of us and I have no material concerns about the children being subjected or exposed to abuse, neglect or family violence.” The father told the Family Consultant that he considered the mother “a good mother”. He made some criticisms of the mother to the Family Consultant, to which I refer below. Nonetheless, he told Ms P that he considered the mother to be “a good mother”.
Nothing whatsoever in the evidence suggested to me that the children have other than a meaningful relationship with each of their parents. There were no allegations or any indication at all of a need to protect the children from the risk of physical or psychological harm.
It was my clear impression that the father and the mother are both fine people and devoted parents. They have managed to agree substantially on post-separation arrangements for the care of their children. For some reason, they could not fully negotiate the amount of time which their daughters should now spend with each of them.

Additional Considerations: Section 60CC(3)
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

A clearly informed the Family Consultant that she “preferred to spend time at her mother’s house because there was a routine and there were rules”. She has put her preference into practice and the father respects her current wishes.
C was reluctant to express any views to the Family Consultant. Ms P observed:
“[C] aged 12 years 4 months agreed to be interviewed but was obviously most reluctant about this. She was cooperative but remained defensive, wanting to disassociate herself from any decision that might be made relating to time she spent with either of her parents. Throughout the interview her demeanour was taciturn and uncommunicative. She clearly wanted to be loyal to both her parents and was most reluctant to disclose any feelings or concerns she might have had about the shared parenting experience. Her attitude changed completely during subsequent observations with family members. She was then observed to be confident, lively and irrepressible.”
Mrs P reported as follows with regard to C:
“When spending time with her father she enjoyed seeing family members and going to the swimming pool. She said that there was nothing she disliked about spending time with her father. With her mother she had fun, she sees her friends and described her mother as ‘nice’. [C] said she liked spending time with both parents. However she identified herself as the angriest person in her family in relation to [S]. She said that she finds [S] annoying because she did ‘stupid stuff’ and because ‘she does not do what she is told’”.
The Family Consultant asked C for her response to a decision that she should spend more time with her father and reported:
“She replied that she would not care so long as she saw both of her parents. She was then asked what she would say if the judge told her she should continue to follow the current arrangements. [C] responded that she would not care. She was then asked for her view to the judge deciding that she would spend a shorter weekend with her father. She replied that she would not agree with that decision. She then added that she thought it might be better if they went to each parent 50/50 but then qualified this by saying ‘it does not really matter’. She was asked if she wanted to see her father separately from her sisters. She said that she wanted to go to her parents’ homes together with her sisters.”
The Family Consultant reported as follows in relation to S’s views:
“When asked for her response to a judge deciding that they would spend their time equally between their parents [S] replied that ‘this would be more fun because you get to see them each the same’. When asked what she would say if the judge said she should see her parents the same as she does now [S] replied, ‘I would be so happy. I would not see Dad as much as Mum.’ If the judge decided she should spend less time with her father [S] replied, ‘I would be more grumpy’”.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Family Consultant assessed that all three children have “positive and loving relationships with both their parents”. They related well to Mr K in the Family Report interviews and kissed him when he left to return to the central coast for an afternoon work shift.
All three children told the Family Consultant that they enjoyed spending time with their paternal relatives, particularly “their aunties”. As noted, the father has a close-knit family in the town.
The Family Consultant was of the view that A’s wish to make her own arrangements about time with her father was consistent with her developmental stage. She reported:
“[A’s] wish to make her own arrangements and not to be forced to go to her father’s home for specified periods of time is in no way connected to feelings of rejection toward her father. Indeed, she feels very positive toward him. It has more to do with her feeling closely aligned to her mother and of her feeling that her mother is more understanding and able to meet her emotional needs at this stage, eg, permitting her to stay with friends. [A] also complained about the inconvenience of packing and unpacking involved in moving between two homes and the fact that she liked to be where most of her possessions were, a common wish expressed by teenagers.”
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There is no doubt that each of the parties is willing and able to facilitate the children’s relationship with their other parent. The current strength and quality of the children’s relationship with each of their parents clearly indicate that they have done so consistently since their separation.
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Family Consultant predicted that the introduction of a week-about arrangement would put at risk the girls’ relationships with each other. She considered that this damage to the sibling relationships would probably undermine a week-about arrangement. Ms P reported:
“It was observed that the closest sibling relationship is between [A] and [C]. If [A] refused to participate in the week-about arrangement and lived with her mother most of the time, it is assessed that [C] is likely to become more resistant to it because she would be spending one whole week away from her sister on a regular basis. If the arrangement persisted whereby [C] continued to spend a long weekend with her father, it seems probable that she might remain a willing participant in defined time arrangements for a longer period because this would not cause such a rift in the sibling relationships.”
As noted, A has largely stopped spending regular face-to-face time with her father. This risk to the sibling relationships has thus moved from a theoretical possibility to a real, practical concern.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live very close together. There are no practical difficulties or expense involved in the children spending time and communicating with each of their parents.
section 60CC(3)(f):  the capacity of:
(i)each of the child’s parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father told the Family Consultant that he believed “[the children’s] mother is taking them away” from him. She concluded that he held the view that
“the children should spend an equal amount of time with him because as a parent he should have as much right as their mother to have his children.”
He said that it is “only fair” that he have equal time. In his oral evidence the father said:
“I would like to have my children as much as she has – they are my children.”
At first glance, these remarks might be thought to indicate a degree of self-focus in the father. His presentation the witness-box, however, led me to ponder whether he may have been under a mistaken impression that separated parents have a “right” to equal time with their children. I also wondered whether he now wishes to make up for time lost with the children during the marriage, when he was heavily focussed on work in his family’s business.
In any event, it is not my task to automatically order a week-about arrangement, unless there are disqualifying factors. I am required to consider equal time, in the context of reasonable practicality and the children’s best interests. I was not confident that the father understood that concept. As noted, however, it was my view that there were explanations other than self-focus for his remarks.
I am far from persuaded that the mother is attempting to “take the children away from” the father. She seemed to me to be more attuned to their developmental needs and requirement for consistency and routine. A has responded to this capacity in her mother by electing to spend most of her time in the mother’s household. In my view, A has made this choice on the basis of her own experience rather than any negative influence exerted by her mother.
The father seems to allow the children to make decisions for which he should accept responsibility. For example, he allowed S to sleep in his bed and permitted the children to stay up beyond an acceptable time on school nights. It does not seem that he imposes much discipline, particularly with regard to S.
Both A and C complained to the Family Consultant about S’s behaviour. Mrs P reported that “[A] perceived her father did not control her sisters, particularly [S], so they were particularly annoying”. A complained to the Family Consultant that there were no rules at her father’s home and “they did not get told what to do”. She said that when S returns to her mother’s home she is “tired and whinging”. As noted, C too complained to Mrs P about S’s behaviour.
The mother expressed concern about “the way things have changed” between the siblings. She said in her oral evidence:
The older two think that [S] is a pain in the bum and are always fighting with her”.
She said also:
“[A] and [C] are fighting a lot. I think they are a bit jealous of each other. [A] is jealous that [C] gets away with more than she did at that age. [C] is jealous of [A] because she does not have to go to her father’s place”.

The mother attributed the friction between the children, at least in part, to the lack of discipline in the father’s household. It seemed to me that she may well have been correct.
It may be that the father has addressed issues such as allowing S to sleep in his bed and permitting late nights during school time, as he claimed. For the purposes of these reasons and my decision, I will give him the benefit of the doubt and assume that he has done so.
The father’s attitude to the children having their friends visit them at his home and allowing them to have sleepovers at their homes seemed to me to demonstrate a lack of understanding of the significance of their peer groups. He said in his oral evidence:
“I am always uncomfortable about my daughters having girls over because I am a single parent and a boy and I am worried…”
He indicated that he was concerned that he may be vulnerable to allegations of improper conduct toward friends of his daughters. He said that he started to allow C to have friends visit at his home at the beginning of 2009 but my impression was that these occasions were infrequent.
The father also said that he has “always refused to allow [C] to go to sleepovers to other people’s homes – because I don’t know them very well”. I did not understand why the father failed to make it his business to get to know the parents of his daughters’ friends.
It seems to me to be likely that C and S will become annoyed and resentful if the father persists with this attitude toward contact with their friends. Sleepovers and visits to and from friends are a normal part of childhood and adolescence. It may well be that isolation from their friends would contribute to resistance from C and S to a week-about arrangement. It is likely that C will be first to feel frustration at being kept from her friends, particularly for a whole week at a time.
Overall I have no reservations about the wife’s capacity to meet the children’s needs and her attitude to the responsibilities of parenthood. I regard the father as a very sincere and well-intentioned parent who is somewhat limited in his understanding of the children’s needs. In particular, he does not seem to appreciate that they need regular contact with their friends and a routine.
section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
C is a 13 year old girl and at a stage when she is likely to need a lot of input into her life from her mother. I have some concern as to how she would cope in the next couple of years, if she is regularly away from her mother for a whole week. It should be remembered that A will not be a member of the father’s household, so C could not turn to her in the absence of her mother.
section 60CC(3)(h):          if the child is an Aboriginal child or a Torres Strait Islander child:
(i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
This consideration has no relevance to these proceedings.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
There was no suggestion whatsoever of any family violence.
section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There is no reason to conclude that any particular order would be least likely to lead to the institution of further proceedings. The reality is that the children will make their own arrangements as to the time they spend with each of their parents as they grow older. C is rapidly approaching that stage of her life.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and

(iii) communicating with the child;

It is abundantly clear that both the father and the mother have fulfilled their responsibilities as parents. They are each devoted to their children and have parented them well. The present problem really seems to have arisen due to different parenting styles and the father’s lack of insight into some of the children’s needs.

The Presumption of Equal Shared Parental Responsibility

Neither party suggested that this presumption does not apply or has been rebutted. It is obvious to me that the father and the mother should have equal shared parental responsibility for their children. It follows that I am required to consider whether it is in the best interests of C and S and reasonably practical that they spend equal time with each parent.

Conclusion

No difficulty arises from the concept of “reasonable practicality”. The parents live very close to each other in the same town.
I am not persuaded that it would be in C and S’s best interests to spend equal time with each of their parents. I have real concerns that this arrangement would cause damage to the sibling relationships. The Family Consultant was in no way shaken on her evidence about this risk, arising from C’s reaction to being separated from A for a whole week at a time. It is highly undesirable that the sibling relationships are disturbed.
It could well be that A and C would come to hold the father responsible and resent him for their being placed in a situation where they are separated from each other for a whole week at a time. Their relationship with their father may suffer particularly as C becomes more autonomous from her parents.
I am also concerned about the contrast in the households, in terms of routines and the parents’ respective appreciation of the children’s developmental needs. As noted, I am of the view that the father’s attitude to visits by the children’s friends and sleepovers may well become an issue for them and make them resistant to a week-about arrangement.
I am also concerned that S’s behaviour, when she returns from periods in the care of her father, annoys A and C. I accept the mother’s evidence that the children have been “fighting” with each other recently. I accept that she is most likely to have accurately identified the causes of this conflict. It seems to me that a week-about arrangement would only exacerbate this friction between the siblings, as S would be placed in a relatively undisciplined environment for longer periods.
For all of these reasons, I reach the conclusion that an equal time, week-about arrangement would not be in the best interests of C and S. I am then required to consider whether they should spend “substantial and significant time” with each of their parents.
The orders which I make will fall within the category of “substantial and significant time”. I will make orders in accordance with the amended Minute submitted on behalf of the mother on 14 July 2009. It is my opinion that this arrangement is more likely than any other to be sustained for a reasonable period into the future. I will order that the afternoon/evening period on each alternate Thursday conclude at 8:00pm rather than 7:30pm, so that the children can enjoy a leisurely evening meal with their father.
I appreciate that these orders will result in a slight decrease in the children’s time with their father and that they expressed to the Family Consultant some dissatisfaction at that prospect. The reality, however, is that they will see their father on the same number of days per fortnight so there will be little practical change to the current arrangement. It is my view, in any event, that the concerns which I have identified must prevail over this consideration.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 4 August 2009

[2009] FamCA 899

4 August 2009

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