Pilcher and Schneider
[2008] FMCAfam 1092
•13 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PILCHER & SCHNEIDER | [2008] FMCAfam 1092 |
| FAMILY LAW – Children aged 5½ and 2¾ – whether equal time arrangement likely to be both in children’s best interests and reasonably practicable – parties relationship characterised by mistrust and communication difficulties – impact on children of equal time arrangement – developmental issues – best interests. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Pilcher & Schneider [2007] FMCAfam 1163 Goode & Goode (2006) FLC 92-286 In the marriage of Patsalou (1994) 18 Fam LR 426 JG & BG 18 Fam LR 255 Stuart & Stuart [2008] FMCAfam 177 Astor & Astor [2007] FamCA 355 (delivered 24 April 2007) |
| Applicant: | MR PILCHER |
| Respondent: | MS SCHNEIDER |
| File Number: | ADC 2591 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 11, 12, 22 & 26 August 2008 |
| Date of Last Submission: | 26 August 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 13 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Cha Di Rosa Lawyers |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Adey Lawyers |
ORDERS
The parties have equal shared parental responsibility for the children of the relationship [H] born in 2003 and [P] born in 2005.
The children live with the father as follows:
(a)Until the child [P] turns four years of age in December 2009:
(i)In alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);
(ii)In each other week from 5:00pm Wednesday until 8:00am the following Thursday;
(iii)At any other times as agreed between the parties or as specified in these orders.
(b)From December 2009 until January of 2011;
(i)In alternate weeks from 5:30pm on Wednesday until 8:00am the following Monday (or Tuesday in the event of a public holiday on that Monday);
(ii)In each other week from 5:00pm Wednesday until 8:00am the following Thursday;
(iii)At any other times as agreed between the parties or as specified in these orders.
(c)Upon the child [P] commencing primary school in January of 2011 on an equal time basis with the children moving between their parent’s respective households on a week about basis.
The children live with the mother at all other times.
That notwithstanding the terms of paragraphs 2 and 3 herein, the mother and father do have the care of the children on special occasions as follows:-
(a)during each Christmas period:-
(i)with the mother in 2008 and each alternate year thereafter from 4pm on 24th December to 3pm on 25th December and in each intervening year from 3pm on 25th December to 5.30pm on 26th December;
(ii)with the father in 2008 and each alternate year thereafter from 3pm on 25th December until 5.30pm on 26th December and in each intervening year from 4pm on 24th December to 3pm on 25th December;
(b)during each Easter period as follows:-
(i)with the mother in 2009 and each alternate year thereafter from 5pm on Maundy Thursday to 5.30pm on Easter Saturday and in each intervening year from 5.30pm on Easter Saturday to 5.30pm on Easter Monday;
(ii)with the father in 2009 and each alternate year thereafter from 5.30pm on Easter Saturday until 5.30pm on Easter Monday and in each intervening year from 5.30pm on Maundy Thursday to 5.30pm on Easter Saturday;
(c)on the said children’s birthdays as follows:-
(i)in the event of a child’s birthday occurring whilst the children are in the care of the father then in the event of the child’s birthday occurring on a school day or a child care day the children do be in the care of the mother for a period of not less than two hours commencing from the conclusion of school/child care or in the event that the birthday occurs on a weekend, Public Holiday or during a school holiday period then the children shall spend time with the mother from 2pm to 6pm;
(ii)in the event of a child’s birthday occurring whilst the children are in the care of the mother then if the child’s birthday occurs on a school day then the children do be in the care of the father for a period of not less than two hours commencing from the conclusion of school/child care or in the event that the birthday occurs on a weekend, Public Holiday or during a school holiday period then the children do spend time with the father from 2pm to 6pm;
(d)on Mother’s Day with the mother from 9am to 5pm;
(e)on Father's Day with the father from 9am to 5pm;
(f)at such other times as may be agreed between the parties including but not limited to time with each of the parents on special occasions such as family birthdays and celebrations.
That for the purposes of handovers, the father do collect the said children from the [M] Child Care Centre or the [K] Primary School, where appropriate, at the commencement of the father’s periods of care and the father do deliver the said children to the school, kindergarten or child care (as the case may be) at the conclusion of the father’s periods of care.
That each of the mother and the father do encourage and facilitate the children’s communication with the other parent by way of telephone calls and written correspondence in the event that the children’s request to do so.
That the parties do use and exchange at handovers a communication book to exchange information relating to all issues concerning the children’s care, welfare and development.
That each of the father and the mother do:-
(a)forthwith inform the other of any serious accident or illness of the children and in the event of a child requiring hospitalisation then each of the parents shall be entitled to visit the child in hospital;
(b)be responsible for any child care and out of hours school care fees incurred by that parent whilst the children are in that parent’s care;
(c)permit the children to attend with the other parent in the event of a funeral of a family member or close relative or friend;
(d)be entitled to attend at and participate in any extra-curricular activities of the children;
(e)inform the other of all medical practitioners with whom the children consult and each of them do authorise the other parent to make all reasonable inquiries of the said medical practitioners in respect to matters concerning the health of each of the children.
That the father do produce to the mother documentation as to proof of completion of:-
(a)a recognised parenting course;
(b)an anger management course and/or a prescribed domestic violence course for perpetrators of domestic violence;
upon completion of same.
That the father and mother do participate in the Anglicare “Kids Are First” parenting program.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Pilcher & Schneider is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2591 of 2007
| MR PILCHER |
Applicant
And
| MS SCHNEIDER |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Pilcher “the father” and Ms Schneider “the mother” are the parents of [H] born in 2003 and [P] born in 2005.
These proceedings relate to final arrangements for the care of the two children. In particular whether, on balance, it is likely to be both reasonably practicable and in [H] and [P]’s best interests for them to live with their parents for equal periods of time or whether some other arrangement is likely to be more appropriate.
The parties have never been married. They met in late 2001 and began to live together in October 2002. They finally separated in May 2006, when the mother and the two children concerned left the former family home in [M]. At the time of separation, [P] was around six months of age.
On 28 June 2006, the father wrote to the mother in the following terms:
“I had indicated to you, I wanted under what CSA deems Substantial Care (110 to 145 nights per year) with [H] and [P], however you have been intentionally restricting overnight stays for reasons only known by yourself. I appreciate you are still breast feeding [P], however given the circumstances in our relationship rapidly changed, I believe you need to seriously consider alternative options which would allow me to have the contact time which is mutually accepting.”[1]
[1] See mother’s affidavit of evidence filed 25 July 2008 at annexure E
Associated with the letter was a schedule of times, which the father sought to spend with the two children. He proposed spending three nights per fortnight with them; a further 28 nights to coincide with his annual employment leave; and 4 public holidays each year; totalling 110 nights in all per annum.
At the time of the letter, [P] was just over six months of age and, as the father acknowledged, was still being breast fed. The father also recognised in this letter that the parties were not communicating well at the time. This situation has not changed markedly in the period since.
From the mother’s position, the letter is emblematic of the father’s attitude towards her and the children. In terms of her, she says he is domineering and dictatorial. In respect of [H] and [P], he lacks a facility to focus on their best interests and is motivated more by financial concerns.
From the father’s perspective, the letter has no such gloss, merely setting out his fervently and long held aspiration to be as closely involved as possible in [H] and [P]’s lives and care, which he believes will be in their best interests.
In May of 2007, the father commenced these proceedings, formally seeking orders that would see [H] and [P] living with each of their parents on a week about basis, for equal periods of time. He sought that the presumption of equal shared parental responsibility should be applied to the parties, by the court, in respect of [H] and [P]. [Family Law Act section 61DA]
In her response filed 22 August 2007, the mother proposed that the children spend alternate weekends with their father and made proposals in respect of them spending other special occasions with him. Her application was silent in respect of the issue of the allocation of parental authority, between the parties, in respect of [H] and [P]. The mother also wished orders to be made to mandate the father’s attendance at separate anger management and parenting courses.
I dealt with the interim aspects of the parties’ applications on
21 August 2007. At that time, I ordered that the parties have equal shared parental responsibility for [H] and [P] and that the children should live with their father on alternate weekends from 5:30pm on Friday until 8:00am the following Monday and in each week from 5:00pm each Wednesday until 8:00am the following Thursday. This amounted to the children spending five nights per fortnight in their father’s care.[2]
[2] See Pilcher & Schneider [2007] FMCAfam 1163
Concurrently with the making of these interim parenting orders, I directed that the parties commission a suitable qualified expert to prepare a family assessment in the matter. This assessment was prepared by Ms Alexandra Cole, an experienced psychologist.
In her assessment, Ms Cole opined that the primary theme for the court was whether [H] and [P] “would be likely to benefit from a shared-care arrangement given their young age, and given the poor state of the co-parenting relationship” between Mr Pilcher and Ms Schneider.[3]
[3] See family assessment report of Ms Cole dated 17 July 2008 at page 4
Although initially opposed to the five nights per fortnight regime, the mother now accepts that it is working fairly well. Certainly, she does not advocate a reduction in the amount of time the children currently spend with their father.
However, she is strongly opposed to any marked addition in the time [H] and [P] spend with their father, believing it would be developmental unsuitable for them, given that their primary attachment is to her and largely impracticable because of the lack of trust and facility in communication between her and the father.
The father acknowledges that the level of communication between the parties is poor. In fact, he describes it currently as being “woeful”. However, from his perspective, the conflict is driven by the mother, not by him. He characterises her as emotionally unstable and motivated to limit his time with the children for reasons relating to child support[4] and the satisfaction of her own emotional needs.
[4] See father’s affidavit filed 23 July 2008 at paragraph 22
On the other hand, it is the mother’s position that the father has a domineering and insensitive personality and is fixated on what he perceives are his “entitlements” in respect of the children. She alleges that the father is intent on securing an equal time arrangement for the children to reduce his liability to pay her child support.[5]
[5] See mother’s affidavit of evidence filed 25 July 2008 at paragraphs 49-52
Essentially, the mother asserts that she is “child-focussed”, whereas the father is not. The basis of this assertion is that she has been more involved in the day to day nurture of the children, up to this stage and they are not sufficiently developmentally mature to cope with a shared care regime at this stage. A state of affairs which she asserts, by necessary implication would be self-apparent to a more insightful parent than the father.
From the father’s point of view, the five nights per fortnight has proceeded very well indeed and the children have thrived and flourished under it. As such, he asserts that it is now opportune for the court to consider an extension of the time the children spend with him, as they are now well accustomed to being cared for by him.
Accordingly, it is his position that it is incumbent upon the court to implement a shared care arrangement for [H] and [P], which is in keeping with the ethos of Part VII of the Family Law Act 1975. However, in deference to the mother’s position and advice proffered by Ms Cole, he is prepared to consider a staged introduction of such an arrangement.
Through the opening and closing submissions of his counsel,
Mr Bowler, he proposes that the children should move to a regime whereby they live with him for six days per fortnight (from Wednesday to Monday morning in one week and overnight on Wednesday in the other week), when [P] will be four in December 2009, with the inauguration of a seven day about regime coming with [P] starting primary school in January 2011.
Although the mother no longer contends that the presumption of equal shared parental responsibility is rebutted by considerations of family violence, it is her position that the father “physically assaulted her” by pushing her and throwing things at her.
In addition, she contends that the father was “emotionally abusive” towards her and unsupportive of her parenting and homemaking, whilst the parties lived together.[6] These are other factors, which the mother contends, preclude the parties from having a shared care regime for [H] and [P], either now or in terms of the timetable the father proposes.
[6] See mother’s affidavit of evidence filed 25 July 2008 at paragraph 29
The father vigorously refutes any suggestion that he is or has been a directly violent or emotionally abusive spouse. To the contrary, he asserts that the mother has fabricated these allegations to gain financial advantages for herself and to frustrate his ambitions to be as fully involved as possible in the care and lives of [H] and [P]. In particular, the father asserts that the mother has enlisted other professional people, to assist her emotionally, by making these unfounded accusations of violence against him.
Both parties are professional people. The father is an [occupation omitted], who is full-time employment. The mother is an [occupation omitted], who works on part-time basis, currently averaging about
21 hours work per week.[7] Accordingly, [P], in particular, has been placed in child care. [H] has recently started primary school at
[K] Primary School, of itself a source of controversy between the parties.
[7] See exhibit 8
From the mother’s point of view, she has limited her work hours and opportunities to be more available for the children. The father disputes this assertion believing that the records of [P]’s child care centre demonstrate conclusively that the mother is more than capable of placing [P] in child care, for extended periods of time, when she wishes.
For his part, the father asserts that he has a considerate and flexible employer, who will accommodate his need to be available to co-parent [H] and [P], when necessary. In addition, he points to the fact that he has a ready source of assistance to parent the children, in the form of his teenage daughters, [J] (19 years) and [E] (18 years).
The mother disbelieves any suggestion that the father has access to accommodating and flexible hours of work. She believes that the reality of the father’s situation is that he has a demanding work schedule and is himself something of a “workaholic”.
Certainly, she says that this was her experience of him, during the time the parties lived together. In addition, she is dubious that [J] and [E] will necessarily be available to assist Mr Pilcher in caring for [H] and [P] because, given their ages, they are likely to want to pursue their own interest and lives in the near and medium term.
These are some of the major areas of contention between the parties. The proceedings were hard fought. I was provided with a number of communication books, which the parties have previously passed between themselves to exchange parenting information regarding the two children. I was also provided with the text of some SMS messages, which have also passed between the parties.
These demonstrate that there is little empathy between the parties and my impression is that they have quite different personalities. As such, their relationship does not provide the optimal environment for a shared care regime.
The major deficit being that the parties are likely to experience problems in exchanging information regarding the needs of the two children concerned and to have difficulty in reaching a compromise, when difference arise between them, in respect of care arrangements for the children.
The central issue for the court is whether the lack of perfect circumstances for a shared parenting regime should preclude it, particularly given that the father is currently spending “substantial and significant” time with the children, who are showing no overt signs of not developing appropriately. Certainly Ms Cole observed no such difficulties.
In addition the father contends that it is likely to be in [H] and [P]’s best interests to end the litigation between their parents sooner rather than later [section 60CC(3)(l)]. Necessarily, from his point of view, this must involve the inauguration of a shared parenting regime, at some readily identifiable point, as a consequence of the conclusion of these proceedings.
The mother prefers a “wait and see” approach, which may lead to further proceedings. In my estimation, the father is unlikely to easily surrender his aspiration towards a shared cared care regime.
From the perspective of a child, particularly a very young one, compromised parental relationships, particularly in terms of communication skills, pose a potential threat because children lack sufficient language skills and developmental maturity to enable them to convey their needs to their parents with sufficient clarity.
Necessarily, they must rely on their parents or care givers, in this regard, who ideally must have some facility to exchange the necessary information required regarding how their children are faring emotionally and developmentally, without these issues of themselves becoming a source of conflict.
In addition, such conflictual parental situations may engender an unacceptable level of stress in the lives of any children concerned, who are likely to lack sufficient intellectual insight to understand and so rationalise the conflict between their parents and the reasons for it.
Ms Alison Tucker, an experienced clinical psychologist, based in Adelaide, put it this way:
A particularly vulnerable group is young children (before school age, and even more so those who are very young, infants and toddlers, up to three years of age). Young children have to communicate primarily through their behaviour, and do not have the verbal skills to convey their thoughts and feelings. This is a particular handicap in an adult world …
Early childhood is a period of significant brain development. We now know the importance of emotional warmth and consistency of care in supporting brain development in the very young. …
We also now know how damaging stress hormones are, particularly cortisol, to developing brains. Exposing a child to high and/or enduring levels of stress hormones, beyond what they can modulate, risks compromising their brain functioning in very real terms…
The more developmentally cautious approach is to ensure that very young children have consistency of care. There is so much growth and development for children in the first few years that a predictable life, with minimal exposure to stress, is a potent investment in their long term mental health. With age, children can become more resilient. With resilience, more can be asked of children so that in the longer term they benefit from the influence of both parents in their lives. In the alternative, if with age children remain vulnerable then we are well informed and know to ask less of them.”[8]
[8] See Tucker, A “Shared Parenting – Public Perceptions vs Legislative Reality: Our Role in Making it Work for Children” (April 2008), paper presented to the 13th National Family Law Conference, Adelaide
The mother contends that she has attempted to engage the father in joining with her to make important decisions concerning the children, particularly which school [H] should attend but the father has ignored these overtures. In addition, she has offered the father more time with the children, which he has rejected [section 60CC(4) & (4A)].
The father says these overtures and offers have been infrequently made and are to be characterised variously as insincere, self-serving, manipulative or disingenuous on the mother’s part.
Again the central issue in this case turns upon the potential impact on [H] and [P] of their parent’s currently poor relationship with one another, given the tender ages of the children concerned, particularly [P]. The father’s position is that, with time, the level of tension is likely to dissipate. The mother is not so sanguine.
The parties each fervently love both [H] and [P]. Ms Cole described them both as “sensitive, warm and encouraging” in their interaction with the children.[9] As such, each is committed to ensuring the best outcome for the children, from these proceedings, both now and for the remainder of their childhood. The difficulty in the case is that the parties are likely to have different views as to what is and how to achieve such a best outcome.
[9] See family assessment report at page 5
Obviously, from the father’s perspective, the best outcome is a shared care arrangement. The mother disagrees, being concerned about the parties’ conflictual relationship and the tender years of the children concerned. The question arising for the court being “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared, or deeply divided?”[10]
[10] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
In her report, Ms Cole recommended that:
“For the coming two to three years the current arrangement is maintained. The girls are managing well. The current arrangement does provide for substantial time with both their mother and their father, and allows for Mr Pilcher to be meaningfully involved in their care (e.g. spending both leisure time and school time with the girls), which is considered by the writer to be of benefit to the girls.”[11]
[11] Ibid at page 14
The mother is content to accept this recommendation, although it may mean the possibility of further litigation between the parties in two to three years. From the father’s perspective, given that Ms Cole assesses the children as doing well, under the current arrangement, it is now appropriate that the arrangement be revisited and a “road map” put in place leading to a shared care arrangement. These proceedings are directed to resolving these various disputes between the parties.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [H] and [P]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and half-siblings [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
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.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[12]
[12] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
Given the significance to family violence, which the mother places in the case, it is appropriate to consider its significance in the legal context. It is clear from the structure of the Family Law Act that the court must closely examine allegations of family violence, bearing in mind the serious consequences exposure to such violence may have for any children concerned.
Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” [section 4].
Accordingly, it is not necessary to demonstrate an actual injury on the part of a person complaining of family violence. Behaviour which cause fear or apprehension to a member of a person’s family is sufficient to constituted family violence.
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force, on the other of a child’s parents, are not appropriate psychological role models for children. For obvious reasons, it is also potentially psychologically damaging for a child to be exposed to violence, involving his or her parents.[13]
[13] See In the marriage of Patsalou (1994) 18 Fam LR 426
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.[14] Obviously the latter behaviour is the more damaging, so far as children are concerned.
[14] See JG & BG 18 Fam LR 255 at 261
Again these are factors, which the court must bear in mind, in examining issues of family violence, in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to children.
The fundamental task for the court is to assess prospective dangers for the children concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, as can be seen from the definition quoted above, family violence, in the context of Family Law proceedings, has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
The evidence
The father relies on the following documents:
i)Two affidavits of himself filed on 15 May 2007 and 23 July 2008.
The mother relies on the following documents:
i)Two affidavits of herself filed 25 July 2008 and 1 August 2008 respectively.
The family assessment report of Ms Cole was attached to an affidavit of the mother’s solicitor, Mr Adey, which was filed on 22 July 2008. The report comprises part of the evidence before the court.
Each of the parties was skilfully and extensively cross-examined by counsel for the other party. As a result, I had an opportunity to observe each of them at close quarters.
The only other witness, who gave evidence before the court was
Ms Cole. Ms Cole has been a psychologist in private practice since May of 2006. Prior to that she was employed, as a psychologist by Families SA and the Department of Children’s Services for just over five years in total.
As a result of her experience, in both the private and public field,
Ms Cole has extensive experience of interviewing and observing children and so assessing the nature of their parental relationships. Neither party challenged her expertise to give evidence in these proceedings.
Ms Cole’s report was extensive and well considered. In my view, she correctly identified the central issue in this case, namely whether [H] and [P], given their ages and the poor state of the parties’ relationship with one another, would benefit from the shared care arrangement proposed by Mr Pilcher.
Ms Cole had a significant advantage, over me, in this case. She was able to see the children interacting with each of their parents and was able to hear each of them speaking with their own voices. Accordingly, her impressions of the children are based on an immediate and intimate experience, which I cannot share directly. Accordingly, her opinion and evidence must be given a high level of regard by the court.
The issues in this case are subtle and have arisen over a number of years. The parties’ relationship, particularly in its latter stages, was no doubt unhappy and riven by tension, otherwise they would not have parted.
No doubt these circumstances precipitated powerful emotions in each of them, which were intensified by the fact that they were the parents of two young children. In such circumstances, it would be both unrealistic and unnecessarily utopian to expect them to have a perfect relationship, with one another, now.
It is also my impression that the parties have quite different personalities, which are not necessarily complementary with one another. The mother regards the father as dogmatic and being something of a martinet. The father regards the mother as being unreliable and somewhat “flaky” in her views.
The mother perceives the father as being emotionally insensitive. The father cannot understand why the mother is bitterly disposed towards him. It is his case that she is a person of such weakness of character that she is prepared to concoct allegations of family violence against him to achieve her ends. Both blame the other for the present stilted and tense state of their relationship with one another.
Where the mother sees the father as impatient and demanding about [H] and [P], he perceives himself as being wholly reasonable and fixed on the pursuit of their best interests. The difference between five and seven nights a fortnight is not a huge one. However, sadly, the parties are unable to find a compromise.
As a result of the level of complexity, which invariably arises in family law cases, it is often fatuous for the court to decide cases involving children, on the basis of findings of credit relating to the parties themselves – that is the court believing one parent over the other. In affect determining one is truthful and the other not. That is often a simplistic reduction.
It is also very often the case that the parties concerned are honest witnesses but nonetheless have totally different views as to what has occurred between them in the past, as a result of their different perspectives on it and often as a result of their different personalities.
It is, I think, becoming increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact about myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children of their parents maintaining at least the possibility of having a functioning parental relationship with one another, following court proceedings, the court should avoid making potentially hurtful findings of fact, wherever possible, which may unwittingly be damaging to the parties’ future parental relationships, unless it is absolutely necessary to do so.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involved the persons the parties to them hold most dear – their children – blur perceptions and recollections of past events.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved, so that this adjudication can occur.
In my assessment, both the father and mother were honest witnesses, who were each attempting to tell the truth, as they each saw it, about the nature of their relationship with one another. They have a different view about it. That does not necessarily mean that one of them is right and the other wrong. It is merely reflective of the fact that they are different.
Regardless of the differences in their personalities and mode of presentation, I have no reason to think anything other than both parties fervently love [H] and [P] and are motivated to do their very best for the children.
Certainly this was Ms Cole’s impression. She described the parties as being “concerned for [H] and [P]’s well being [and of speaking] affectionately and knowledgably about the girls temperament and development.” I accept Ms Cole’s assessment that both parties are deeply committed to the children.
For all these reasons, I believe I must be cautious about making any finding that one parties’ evidence is to be automatically preferred over the other. Rather I must look carefully at all the evidence available to me to determine what is the best outcome for [H] and [P] from these proceedings. Certainly this process is not one directed to achieving a personal sense of vindication for either the father or the mother in respect of their past behaviour.
a) Events before separation
The father was born in 1961. The mother was born in 1973. The parties met in late 2001. They began to live together in October 2002. They separated, initially under the same roof, in early May 2006.
At the time of the parties’ separation, they were living at the former family home in [M]. The father still lives there. The mother moved out, with [H] and [P], on 18 May 2006.
The mother remained at home, on maternity leave, for a period of fifteen months, following [H]’s birth in March of 2003. She then continued to work, on part-time basis, until shortly prior to [P]’s birth in December 2005.
It is the mother’s case that she was more intimately involved with the day to day care of the children prior to separation, because the father was in full-time employment and was busy with his career. She says the father spent little time with the children and his role with them was limited to occasionally feeding or bathing them on weekends.[15]
[15] See mother’s affidavit filed 25 July 2008 at paragraph 22
The father acknowledges that, in his role as the family’s breadwinner, he was required to go to work. However, it is his case that he spent as much time as possible with the children and was closely involved with the performance of routine parental tasks, such as feeding, bathing and bedtimes.[16]
[16] See father’s affidavit of evidence filed 16 May 2007 at paragraphs 10-11
It is also the father’s position that the mother’s parenting of the children was severely incapacitated by reason of post-natal depression. The mother acknowledges this depression but it is her case that she “soldiered on” during her depression and continued to perform the vast majority of the parenting of the children, with little sympathy or support from the father.
It is also the mother’s position that, notwithstanding her depression and tiredness, the father was a punctilious task master, so far as the performance of domestic duties was concerned. For his part, the father refutes any suggestion that he was not contributing to the full extent of his capacities as both a parent and homemaker, as the dictates of his career permitted.
These are common evidentiary disputes, in cases such as this one, where the parties concerned have separated in difficult and acrimonious circumstances. They are also extremely difficult disputes to resolve, in the absence of independent corroborating evidence. Given the reality of most couples’ lives, such independent corroboration is almost invariably absent.
I suspect that both parties have, to a certain extent, reinterpreted their past circumstances, through the prism of their current hostility for one another. As such, both have followed the natural human tendency to emphasise their own parental strengths and the failings of the other, whilst minimising any significant contributions of the other parent concerned.
On balance, it seems to me more likely than not that the mother performed more of the parenting of [H] and [P] in the period prior to the parties’ separation. I reach this conclusion because it is my impression that Ms Schneider is a solicitous parent and, if anything, could be accused of being over protective.
On the other hand, given the current strength of his relationship with each of the children, I do not think that Mr Pilcher is likely to have been either a neglectful or disinterested parent, in the period prior to the parties’ separation.
Certainly, it is my finding that both children were lovingly and capably parented, in the period prior to the parties’ separation, notwithstanding that the relationship between their parents was at times fraught with difficulty.
Without wishing to appear either sexist or otherwise judgmental, it is also my view that the parties parented both children along conventional lines, with the mother being the stay at home parent and the father the family’s main breadwinner. Having made this generalisation it is also my finding that the father was and remains vitally interested in the children and relished every opportunity to have some level of input into their care.
b) Family violence
As I have already indicated, it is my view that the relationship between the parties was frequently unhappy, particularly in its latter stages. It is not my role to attribute fault for this unsatisfactory state of affairs. In effect, perform a post-mortem to discover the causes of the parties’ relationship failure.
Rather, it is my function to ascertain, if I can, what are the implications, if any, for the children concerned of the parties’ unsatisfactory relationship with one another. It is not my function necessarily to either exonerate the father’s behaviour or find the mother to have been a victim of his unconscionable conduct.
Again, there are no independent and impartial witnesses available to me to corroborate the accounts of either of the parties regarding the state of their relationship. In such circumstances, as I have already indicated, it is my view that it would be imprudent for me to prefer one party over the other, merely on the basis of my assessment of their respective presentation in the witness box.
In any event, I suspect that the parties’ circumstances are such that it would be grossly simplistic to regard one party as being totally at fault and the other totally blameless in respect of the creation of the unhealthy pathology surrounding their relationship. I suspect that the parties are “chalk and cheese” so far as the other is concerned.
The mother alleges that the father exhibited a range of generically described anti-social behaviours including: isolating her from friends and family; being possessive, controlling and dismissive of her housekeeping; being alternately verbally abusive of her and then withdrawing from her into silence; all of which she asserts had serious implications for her self esteem and state of psychological wellbeing.
In terms of direct physical violence, the mother alleges that the father “physically assaulted [her] by pushing and throwing items [at her].” The father vehemently refutes any suggestion that he has ever behaved in a violent way towards the mother. She does not give any further specifics of this conduct.
The mother, in support of her submission that she has been the victim of family violence, points to the fact that she has consulted a domestic violence service, between July and November of 2006, as well as consulting her general medical practitioner, Dr B.[17]
[17] See annexure A and E to the mother’s affidavit filed 22 August 2007
The father argues that the fact that the mother consulted these persons does not confirm the truth of the mother’s allegations against him. This is so. In addition, he points to the fact that the mother did not specifically raise with Dr B any allegation that he (the father) had assaulted her (the mother). He argues that if the mother had been assaulted by him, it would have undoubtedly been the case that she would have said as much to Dr B.
In her report dated 16 August 2007, Dr B speaks highly of the mother and her interactions with both [H] and [P], whom she describes as healthy and well maintained children. Dr B also confirms the mother’s diagnosis of post-natal depression but describes the mother as being compliant with medication prescribed for her and being able to properly parent the children notwithstanding her illness. Dr B records that the mother described the father to her as not being emotionally and practically available to her.
Dr B’s report confirms my own impression that the mother remained responsible for providing most of the care for the children, prior to the parties’ separation, notwithstanding her diagnosis of post-natal depression.
It also confirms my finding that the parties’ relationship with one another was deeply unhappy and unsatisfactory, from both their points of view. However, it cannot amount to any corroboration of the mother’s complaints of having suffered family violence at the father’s hand.
Accordingly, I do not think that I can make a positive finding that the father has been violent towards the mother, within the parameters provided by section 4 of the Family Law Act.
However, notwithstanding this finding, perhaps deeply unsatisfactory to each of the parties, the issue remains a live one for them both and continues to influence the emotional topography between them. Both continue to feel that he or she is the victim of the other’s behaviour. The father at his portrayal as a stereotypical emotionally insensitive and abusive husband. The mother as the timid and emotionally fragile victim of a spouse who has bullied and harassed her.
I make these observations to demonstrate the lack of empathy and trust between the parties. It is my view that both the father and the mother feel genuinely victimised as a result of the other’s behaviour towards him or her. In my view, it is likely to be the case that neither of them is entirely blameless in respect of the current dysfunctional nature of the relationship between them.
c) Events since separation
[P] was just under six months of age when the parties separated. She was being breast fed. Initially the mother sought emergency accommodation for herself and the children. It was not until November of 2006 that she obtained her own accommodation.
The father is critical of the mother for the manner in which she left the former family home. From his perspective, she did it secretly and was high-handed in respect of his ongoing relationship with the children. He complains that he was not able to see them for around two months.
Clearly the circumstances between the parties, around the time of their final separation, were fraught with all manner of difficulties. I suspect that the parties’ respective recollection of these difficulties continue to cause emotional reverberations for them both. In these circumstances, it took some time before the father was able to resume his relationship with the children. In July of 2006, the parties were able to agree on some arrangements for him to see the children.
Initially, it was agreed that the father would spend time with both children on Saturdays. This was gradually increased until the father was spending time with [H], on alternate weekends, from Saturday morning until the following Sunday afternoon. Due to her tender years and the fact that she was being breast fed, [P] spent only from 8:00am until 2:00pm with the father, on the alternate Saturdays when [H] was visiting.
As is to be expected, the parties have differing views as to the conclusions which can be drawn from these arrangements. From the mother’s point of view, they are indicative of the fact that she was and has always been supportive of the children spending an appropriate amount of time with their father.
From the father’s perspective, any increase in his time with the children has been painfully slow and any concession in this regard extracted with the greatest degree of difficulty from the mother. It is his position that all the periods of time he has spent with the children have been manifestly successful.
In January 2007, following a process of mediation, the parties agreed that the father’s time with the children would increase to three nights a fortnight, from Friday afternoon to the following Monday morning. The mother points to this circumstance as evidence of her reasonableness.
This was the background to the current proceedings, which the father commenced on 16 May 2007. It was his position that progress towards a shared care regime for the children had been too slow. The mother’s position, at the time, was that the arrangements then in place were working fairly well and it would be inappropriate to change them too quickly.
On 21 August 2007, I adjudicated between the parties’ competing applications.[18] I determined that there should be a modest increase in the time the father spent with the children so that they spent one week day overnight with him, on Wednesdays, each week. This brought the number of nights the father spent with the children to five nights per fortnight. This remains the position.
[18] See Pilcher & Schneider [2007] FMCAfam 1163
d) Child support
It is the mother’s position that what she perceives as the father’s obsessive drive to spend more time with the children is motivated by his desire to reduce his level of child support. For his part, the father similarly asserts that the mother opposes a more rapid progress towards a joint care arrangement because she wishes to maximise the level of financial support which she receives from him.[19]
[19] See father’s affidavit of evidence filed 23 July 2008 at paragraph 22
In my view, as with many other disputes between the parties, this issue is illustrative of the different personalities of the parties. The father is an [occupation omitted] by profession. Figures and what they represent matter to him. He has an assertive personality, in the sense that, if feels he is in the right, he will persist in pursuing the particular issue at stake. The mother sees this level of insistence as insensitive bullying.
The father’s letter to the mother of 28 June 2006[20] is insensitive and doctrinaire. With its emphasise on “substantial care” it shows scant regard for the mother’s feelings and the needs of [P], who was still a babe in arms and being breast fed at the time.
[20] See exhibit E to the mother’s affidavit file 25 July 2008
In the period afterwards, the father has sought to challenge a number of the child support assessments. He has also claimed some “non-agency payments” to be set off his child support liabilities, which have been disallowed by the Agency.
The father is entitled to make representations to the Agency, regarding the application of the child support formula to his and the mother’s circumstances. Given his temperament, he is probably more likely than most to want “to take the point” about any child support assessment. This may be regarded as insensitive – certainly the mother perceives it as such – but it is not, in my view, tantamount to some form of psychological abuse.
The mother necessarily must have some level of insight into the father’s personality and he into hers. Both have exhibited some propensity to goad the other, knowing from long familiarity what are “the right buttons to push” in this regard.
This mutual propensity, in my view, colours much of the parties’ correspondence with one another. Certainly, this is evident in the respective portions of the parties’ correspondence to which each takes exception and which have been examined in these proceedings
For example, an otherwise anodyne entry, from the mother, in the communication book for 24 January 2008[21] says as follows:
[21] See exhibit 3
“P.S. I am happy that your CSA payments will increase from hereon in.”
Associated with this entry is a pictograph of a “smiley” face.
The father sees this is an example of the mother’s passive aggression towards him. The mother concedes that it was a provocative and infantile gesture. In the larger scheme of things, it is of no moment. Its only relevance is to exhibit the parties’ propensity to want to score points against the other, which each says that the other is driving.
The parties are each professional people. They have careers which afford them a comfortable level of remuneration. But neither of them can be described as either wealthy or well off.
As such, their separation was a financial disaster for each of them. The mother, whilst caring for two small children, was compelled to seek alternative accommodation. For the father, he was confronted with the realisation that a significant component of his income would be diverted into child support in future.
In addition, the parties were compelled to take proceedings in the District Court regarding the division of their property, particularly what should occur in respect of the former family home at [M]. Those proceedings have now been resolved. I have no doubt that these financial considerations constituted a significant irritant in the parties’ relationship with one another.
No doubt both parties felt hard done by as a result of their straitened financial circumstances. In my estimation, both parties are struggling to come to terms with the bitter feelings, each holds for the other as a result of their separation and the difficulties which it has created. These feelings have coloured their relationship with one another in the period since.
The mother asserts that the father has been disingenuous in respect of the documents (or lack thereof) which he has provided to the Child Support Agency. She asserts that the father has not completed his taxation returns for the past three financial years and has not been forthcoming about his remuneration arrangements with his employer.[22]
[22] See mother’s affidavit of evidence filed 25 July 2008 at paragraph 52
The father refutes these allegations and asserts that he has paid all the child support required of him. The actual records produced by the parties, in respect of child support, are contradictory. As a result, the true position is difficult to ascertain. Two letters, dated two days apart, variously indicate that Mr Pilcher is assessed to pay $931.67 and $1,942.00 child support per month.[23]
[23] See exhibits 9 & 10, which are letters from the Child Support Agency dated 2 August 2008 and 4 August 2008
On balance, I do not believe that it can be said that Mr Pilcher is managing his affairs to minimise child support. He is perhaps an unenthusiastic payer but, given his circumstances, this lack of enthusiasm is understandable if not laudable. Certainly I do not think that the father is the type of parent who would willingly condemn his children to penury whilst he lived a comfortable life.
To his credit, Mr Pilcher does not suggest that Ms Schneider has misapplied any of the child support she has received for [H] and [P]. In his evidence, he described her as a “good” parent.
e) The parties work arrangements
The father deposes that he enjoys “flexible” working conditions. He denies any suggestion that his employment will take priority over any future responsibility to provide care for the children. For her part, the mother has a somewhat jaundiced view about how the father will balance the responsibilities of work and family in future.
The father works at least thirty-eight hours per week. He has five weeks of holidays accumulated. He concedes that he has never utilised carer’s leave in the past. The mother submits that this state of affairs is indicative of the fact the father is liable to prioritise his work over family commitments.
I was provided with a copy of Mr Pilcher’s contract of employment.[24] Counsel for the mother, Mr McGinn points out that there are no specific clauses related to flexible hours of employment contained in it. The father’s position is that he is able to leave work earlier and arrive later, with his employer’s acquiescence, when he is responsible for the children and make up lost time later.
[24] See exhibit 2
I accept that, in general terms, the father enjoys some latitude in respect of his employment. However, he is to be regarded as a full-time worker and, as such, in common with very many members of the Australian community, will struggle to balance work/family commitments.
No doubt work is important to Mr Pilcher. It is important to most Australians. However, I am not convinced that he can be described as a “workaholic”. He has a responsible position and no doubt those responsibilities do intrude, from time to time, into his leisure hours.
As previously indicated, it is a significant plank of the father’s case that he will obtain assistance from his two teenage daughters [E] and [J]. The mother is concerned that it is imprudent of the father to rely on [E] and [J] because inevitably they, given their ages, will want to pursue their own lives and interests and will be resistant to the prospect of minding [H] and [P].
The mother to is engaged in paid employment. She returned to her employment in August of 2006 following her second period of maternity leave. A letter from her employer indicates that the mother works under a flexible arrangement on a week by week basis. On average, over a period of 104 weeks, she has worked 21 hours per week.[25]
[25] See exhibit 8
It is a significant feature of the mother’s case that, “when push comes to shove”, it is she who will take absence from work in order to accommodate the needs of the children rather than the father. In this regard, she points to the fact that she has taken more sick and holiday leave than the father, which she says is directly attributable to her having to cope with unforseen exigencies arising in regards to [H] and [P]’s care.
As with many working parents, the mother is compelled to utilise childcare facilities for the children, when she is at work. Given [H] is now attending primary school, these considerations now mainly apply to [P]. From time to time, Ms Schneider’s mother cares for the children after [H] has finished school for the day.
The mother is not in a financial position where she can afford to remain out of the workforce. I accept that, as best she can, she tailors her work around the needs of the children. It seems to me that she is better placed to make these accommodations than the father. The fact that she frequently does so, is also likely to be a source of friction between the parties.
The father subpoenaed the children’s childcare records[26] with a view to establishing that the mother was not as magnanimous, in putting the children’s needs before her work, as she would have the court believe. These records did indicate that the mother frequently placed the children in childcare for periods of up to a week at a time. From a forensic point of view, they also establish that the mother is willing to let others care for the children, albeit professional people, whom she has vetted, for extended periods of time.
[26] See exhibit 5
I am not critical of the mother for her hours of work or the level of her past utilisation of childcare. I do not necessarily think it is established that the mother has been dishonest, in her evidence, about her use of childcare. Rather, I accept that the mother does have a flexible work environment. As a result, necessarily, her hours of work will wax and wane from time to time. Accordingly she will have to use child care, on occasions for extended periods. So do many working parents.
To a certain extent, both parties are in the same boat, struggling to balance competing commitments – earning a living and caring for children. It is the mantra of the age that work/life balances are out of kilter. These pressures are intensified when the parents of children are separated. Necessarily, both must make ad hoc decisions regarding childcare.
For her part, the mother is highly reliant on her own mother to assist with caring for the children from time to time. Again, this is a common place occurrence for many working Australian parents.
f) The parties’ attitude to the others parenting and communication generally
Sadly, the parties presently do not like each other at all. As a result, their communication with each other is lacking in empathy and spontaneity. Theirs is not a relationship, which is amenable to fluid or ad hoc arrangements. As such, there will always be the potential for disputes to arise between them about arrangements for the children.
The parties have been separated for several years now. Necessarily they lead different lives, with different preferences and priorities. They bring quite different personalities and background to the children concerned. In such circumstances, it is inevitable that differences will arise between them and it would be unnecessarily utopian to think those disagreements could always be resolved either amicably or consensually.
As I have already indicated, the father did concede that the mother was a “good” parent. He is however capable of launching quite stinging attacks on her overall attributes as a parent. In particular, he complains that [P] is often returned to him unwell. He also asserts that the mother utilises childcare, when the children are unwell, rather than caring for them herself.[27]
[27] See father’s affidavit of evidence filed 23 July 2008 at paragraph 29
It is also clearly the mother’s case that she is by far the superior parent. However, when pushed to catalogue the father’s failings, in this regard, the mother found difficulty in enumerating them.
Her criticisms of the father include that he is not particularly adept at cooking for the children; has returned them to her, in the morning, with lollies; does not follow through in respect of the imposition of punishment; is inconsistent in setting boundaries and routines for the children; has exposed them to “scary” movies; does not cut their nails or hair; and provides them with clothes that look like they came from “an orphanage”.
In essence, the mother complains that the father is not as “child focussed” as she is, particularly in setting boundaries for the children and putting them into a routine. By implication, she portrays the father as a superficial parent, who is content to leave the “hard stuff” of parenting, such as discipline and education to her. Ms Schneider conceded that she found it difficult to give specific examples of the father’s failings in this regard.
This catalogue of the parties’ respective failings emphasises my impression regarding their essential incompatibility. It does not mean that I accept necessarily that either is a poor parent. Rather, it is my view that, given their different backgrounds and personalities, they bring different attributes to the role of parenting. They also do not particularly like each other as individuals.
The person most able to bring an objective assessment of each of the parties’ parenting capabilities is Ms Cole. She regarded both [H] and [P] to be delightful and well cared for children. I reiterate her assessment that both parties presented as concerned for the children’s well being and knowledgeable about their (the children’s) respective temperaments and level of development.[28]
[28] See family assessment report at page 10
The parties’ views about what is important in parenting are unlikely to be wholly complementary. In addition they are likely to experience difficulty in compromising their views and both are likely to be resentful at any perception that he or she is being dictated to by the other. Both parties struck me as being capable of stubbornness.
These difficulties are most clearly identified by an issue which came to the fore regarding [P], who has suffered from eczema. The mother consulted a naturopath, who diagnosed food allergies as being the cause of the condition. She did not discuss the consultation, with the father prior to it occurring. The father complains about this.
The mother deposes that she informed the father, in writing, of the outcome of the appointment the day after it occurred and particularly that [P] had been diagnosed as being allergic to a number of foods including wheat, diary, egg whites and some fruits. In addition, she advised the father that the naturopath concerned had diagnosed some tablets; drops; and creams; for [P] to use.
In addition, the mother provided the father with the name and telephone number of the naturopath concerned and invited him to contact her if he required any further information. The mother complains that the father did not consult the naturopath concerned, or utilised the treatments provided. She also complains that the father failed to raise with her directly any concerns which he had regarding the naturopathic consultation.
The father describes the mother’s letter as a “scrap of paper” and the dietary regime unduly restrictive and impracticable, particularly as [P] was attending a childcare centre.
The father clearly has little truck with anything which can be described as alternative medicine. He arranged for [P] to see a general practitioner, who in turn referred her to a dermatologist. Again, the mother complains that she was not informed about either of these consultations. Accordingly, with some irony, both parties make the same essential complaint about the other’s dealing with him or her.
Subsequently the dermatologist concerned provided a brief handwritten report which contained his view that [P] did not require any restricted diet, as she did not appear to him to be suffering from any particular food allergy.
The father provided his own more lengthy dissertation on the subject to the mother.[29] No doubt she found it dictatorial and dismissive in tone. Certainly it lacked tact. The letter wrote as follows:
“If you keep to what has been medically advised, [P] should be much better soon. Therefore you should stop the alternative applications used provided by your Naturopath as soon as possible. Both the GP and the specialist have indicated there is no scientific evidence on the methods used by naturopaths to give any level of confidence on [P]’s skin issues clearing using these methods. I would suggest you save your money on any further therapy you have scheduled in this area and transition to more medically proven advice.
I will not be conforming to any of the ridiculous food restrictions you have offered, and as far as your comments of her skin flaring as a result of me, this is not so at all.”
[29] See exhibit 6
The mother consulted the dermatologist rooms to inquire whether the dermatologist had conducted any food allergy tests. The dermatologist himself was unavailable to take her call. The mother complains that the father did not contact the naturopath, whom she had consulted.
It is not my role to comment on the appropriateness or otherwise about the parties’ respective preferred choices in respect of [P]’s condition. Rather, in my view, the importance of the incident is that it demonstrates the parties’ dysfunctional channels of communication; their mutual propensity to act independently of one another; and their inability to compromise and acknowledge the validity of the views of the other.
It is the mother’s case that she was doing what she thought was best for [P] and that she told the father about the process upon which she had embarked with [P]. I accept this is so. Her complaint is that the father ignored her efforts and gave her the “cold shoulder” in respect of them before embarking upon his own inquiries, the results of which he unilaterally imposed on her.
Essentially, it is the mother’s case that she had no choice but to accede to the father’s choice of treatment for [P] because he would brook no other approach and refused to enter into any dialogue with her. For his part, the father thinks that the mother’s approach was self-apparently misguided and any attempt to engage in dialogue about it, a waste of time.
Similar threads of suspicion and animosity imbue another of the major decisions, which was made regarding [H], particularly which primary school she should attend. The mother’s preference was for [K] Primary School, the school [H] ultimately attended.
The mother wrote to the father on 19 September 2007 requesting his input into the decision.[30] It is the mother’s case that she received no proper response to her overture, which can only be regarded as cordial in tone. Accordingly, she took the step of enrolling [H] at [K].
[30] See annexure H to the mother’s affidavit of evidence filed 25 July 2008
The father concedes that he did not formally respond to the mother’s letter. It is his position that he could see no point in entering into any dialogue about the issue of [H]’s school because, from his perception, the decision had already been made and so the overture from the mother was both tokenistic and insincere.
This evidence does not fit comfortably with a text message the father sent to the mother on 30 April 2008,[31] in which he complains of the mother’s unilateral action in enrolling [H] at [K]. The start of school also seems to have precipitated conflict between the parties as to the location where [H] was to be exchanged between them. From the mother’s point of view, the father was “bloody-mindedly” driving this conflict.
[31] See annexure I to the mother’s affidavit filed 25 July 2008
The father deposed that he considered the mother to be “immoral”. He also said there was “no compromising with the likes of
[Ms Schneider]”. The mother reciprocated the attribution of “immoral” to the father with the addition that she regarded him as “evil”. Given the parties’ respective views of one another, it would be extraordinary if they did not have communication difficulties.Both parties acknowledge that their current level of communication is “woeful”. Both profess to want to improve this state of affairs and both indicate a willingness to attend some form of parenting course in this regard. The father has also indicated a willingness to attend an anger management course without acknowledging the need for him to attend such a course.
I confess to being somewhat cynical about the motivation of each of the parties regarding these various interventions. My impression is that both parties make these proposals in the hope that it will somehow advance their respective causes. However, to the mother’s great credit, it is the case that she has attended two courses run by the Child Youth Health in respect of raising children.[32]
[32] See mother’s affidavit filed 25 July 2008 at paragraph 24
The parties have communicated with one another by a variety of means. These have included letters; text messages; telephone calls; and a number of communication books. I have been provided with the texts of some of these communications. For the most part, they are unexceptional. Although both parties accuse the other of misusing modes of communication from time to time.
In early 2008, the mother used one of the books to request the father to sign some motor vehicle registration papers. The father ignored those requests and ultimately withdrew the book because, in his perception, the mother was corrupting its use.
The father reinstated another book, which is inscribed on its flyleaf “purchased by [Mr Pilcher]”. The mother has noted underneath this notation “full credit to [Mr Pilcher], here are some stars to show what a good boy you are.” The mother concedes this was sarcastic. The father is unlikely to see any humour in such statements.
It is the mother’s position that she has, for the most part, genuinely tried to engage with the father but has become increasingly frustrated by his refusal to respond similarly. She concedes that this has led her to respond both sarcastically and rudely at times.
The father’s perception is that whenever the mother has offered him some concession, it has been offered cynically or for some ulterior motive, related to these proceedings. Certainly, it is his perception that the mother has not been genuine in her offers to him to spend more time with the children.
I consider it largely fatuous for me to attempt to determine whether one of the parties is more at fault than the other for this currently parlous state of communication between them. It may be the case that, with both the resolution of these proceedings and the earlier resolution of the property proceedings between them, tensions will ease between them.
Both parties profess to be desirous of improving the level of communication between them. Both also acknowledge the potential impact on the children of the parties’ poor relationship with one another. However, at this juncture, the best outcome would seem to be some form of uneasy truce between them. It is my perception that they will never be “simpatico”.
g) The family report and the evidence of Ms Cole
Ms Cole was an assured professional witness. The major thread of her report and evidence was her concern that neither child be “rushed” to a shared care arrangement before they were sufficiently mature and resilient enough to accommodate it. In her words, “going slower and placing fewer demands on them” was likely to be the best way for [H] and [P] to develop, without unwarranted stress.
Although Ms Cole considered that both children were currently doing well both emotionally and developmentally and were coping with the required transitions between their parents’ respective homes, she considered that there were a number of risk factors present in their environment, which behoved the court to take an overall cautious approach to their care arrangements so that they were not called upon to make “more than one change at a time”.
Ms Cole examined the views of [H], but given her age, did not place any great weight upon them. Of more note, to my mind, was the concession which Ms Schneider made to Ms Cole, that the children look forward to seeing their father and enjoyed their time with him.
The mother indicated to Ms Cole that she believed herself to be both children’s primary carer. Certainly this is the major theme of her case and seems to have been influential in forming Ms Cole’s view that the court needed to approach any change in arrangements for the care of the two children concerned with caution.
However, Ms Cole also observed both children to interact comfortably and confidently with each of their parents. In her report, Ms Cole observed as follows: “… [H] and [P] derived comfort from the presence of both parents, and they readily engaged with both parents in play. Both parents were observed to be sensitive, warm and encouraging in their approach…”.[33]
[33] The family assessment report at page 5
Ms Schneider informed Ms Cole that she believes that [H] and [P] can adapt to having two homes, although she remains concerned about the parties’ different parenting styles and the barriers which exist in the way of the way of them making agreed decisions. She told Ms Cole, in reference to these issues, “I say black and he says white”.[34] I too, have found evidence of this dichotomy of approach in parenting.
[34] Ibid at page 6
As perhaps could be anticipated, the father assured Ms Cole that the children were “entirely ready” for shared care. When appraised by
Ms Cole of some of the research, which was contrary indicative of shared parenting for very young children, Mr Pilcher was prepared to consider other options, provided it still resulted in a strict equality in the division of time the children spent with each of their parents.
I accept that Ms Schneider has provided significantly more of the care and nurture for the children, particularly [P], in the period since each child was born. For obvious reasons, issues to do with nurture and care, must be relevant to the issue of whether a shared care arrangement is likely to be in a child’s best interest. Simple circumstances of biology may rule out such an option, particularly in respect of babies.
For the reasons already provided, a shared care arrangement would have been inappropriate when [P] was six months of age and being breast fed. However, the legislation concerned does not provide specific guidelines as to what age is appropriate for the implementation of such a regime. Rather, the court must bear in mind all the circumstances of the case concerned in its application of what has been described as “the legislative pathway”[38] provided by Part VII of the Family Law Act.
h) Aboriginality
[38] See Stuart & Stuart [2008] FMCAfam 177 at paragraph 44
This is not a relevant consideration.
i) The attitude that each party has demonstrated to the responsibilities of being a parent
In my estimation, both parents aspire to fully discharging each and every responsibility incumbent in being a competent parent. In this sense, each is to be regarded as a good parent. Certainly, I am not persuaded that either the father or the mother has adopted the particular position which he or she has done because of any hidden motive related to child support.
The major issue, which arises under this heading, is the unacceptably high level of conflict between the parties and how this is likely to cloud their decision making process in regards to how [H] and [P]’s interests are best served.
Each of the parties blames the other for their present poor relationship. In my view, it would be unduly simplistic for me to accept that one party was the creator of this unsatisfactory state of affair and the other was the victim of it. Rather I believe that both Mr Pilcher and
Ms Schneider must bare the responsibility for the creation of the toxic relationship between them.
The parties have been separated since May of 2006. Necessarily they now lead different lives, with different preferences and priorities. In addition, they bring different personalities and backgrounds to the parenting of the children concerned. Inevitably, they are likely to have different priorities and agendas in regards to the care of the children.
I suspect that the parties would like to be able to resolve the various differences between them, without recourse to litigation, but the differences in their personality and outlooks prevent them from so doing. Accordingly, neither can be automatically characterised as being unreasonable or a failure as a parent. They are merely different – in character and personal orientation.
Inevitably, these circumstances must lead to differences of opinion between them, particularly since the relationship between them has ended, an occurrence, which for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
Every case, involving the care of arrangements for children, which comes into court, must involve issues of this kind to some degree or other. It cannot be the legislative intent that shared parenting be ruled out in all of these cases.
In Astor & Astor[39] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[39] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard which is clearly unattainable given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.
Mr Bowler, counsel for the father characterises the parties’ level of communication with one another as, in the main, reasonably cordial and businesslike. He points to the absence of direct incidents of verbal abuse or physical confrontation between them, particularly that they have been able to exchange the children between them without utilising third parties.
More importantly, there is no evidence the children are currently directly affected by the conflict between their parents. In particular, he points to the fact that [H] reported to Ms Cole that her parents got along “good”.
Both parties, in this case, have indicated a willingness to undergo further parenting courses. In addition, although he does not concede the need for it, Mr Pilcher is prepared to complete an anger management course. In all these circumstances, it is Mr Bowler’s submission that the parties’ parenting relationship is destined to improve, in the short to medium term, particularly if this litigation is resolved.
j) Family violence
k) Any family violence order
I have already dealt with the issue of family violence in these reasons for judgment. There is no relevant family violence order applicable to these proceedings.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The parties’ parenting relationship with one another is poor. This is not a good harbinger for the avoidance of further litigation. However, the parties agree that they should have equal shared parental responsibility for [H] and [P]. Accordingly, whatever is the precise outcome in this case, they will be compelled to have a significant degree of involvement, with one another, for the foreseeable future.
It is the father’s position that he has taken onboard the recommendations of Ms Cole in regards to the appropriate timetable for [H] and [P] to move to a shared parenting regime. It is his submission that, given his aspirations; the intention of the applicable legislation; and the fact that the children are coping well with the current arrangements; it is inevitable that [H] and [P] will ultimately be parented in shared care arrangement.
Given the concessions he has made, it is Mr Pilcher’s submission that, the best option for the parties themselves (and indirectly the children) to avoid the potentially deleterious consequences of further litigation is for the court to adopt his proposal of a tiered approach to the implementation of a shared care regime. This submission has a great deal of appeal to me.
On the other hand, Ms Schneider proposes that the court potentially revisit arrangements for [H] and [P]’s care, in about two or three years time, as Ms Cole proposes. The drawback of this position is that it may mean that there will be further lengthy and expensive proceedings between the parties, at that stage. In my assessment, Mr Pilcher is unlikely to ever abandon his aspiration to a shared care arrangement for the children, no matter what Ms Schneider believes is his ultimate motivation in this regard.
Accordingly, it is my view that the best means for the court to avoid further litigation between the parties is for it to adopt Mr Pilcher’s position. This approach will also ameliorate some of the significant concerns raised by Ms Cole. Its major drawback is that the parties are likely to disagree about the readiness of the children to move to a shared care regime at each of the steps proposed by the father.
Equal shared parental responsibility
It is not necessary for me to consider the application of the presumption contained in section 61DA to the circumstances of this case. The parties agree that the presumption should apply. For my part, I do not think that there are any considerations, relevant to [H] and [P]’s best interests, which should cause me to disregard what the parties have agreed in this regard.
Accordingly, the next part of the exercise is to consider what should follow from that presumption. The exercise of the presumption is mandated by section 65DAA. I am required by the applicable legislation to consider an equal time arrangement first.
It is only when that arrangement is ruled out, on the basis of a proper consideration of the child concerned’s best interest and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.
In this particular case, I am satisfied that currently [H] and [P] are spending substantial and significant periods of time with each of their parents. Accordingly, the major issue for the court to determine, in this case, is whether there should be some judicially directed move to an equal time arrangement, either now or at some stage in the future.
The ambit of the court’s considerations, pursuant to section 65DAA is strictly stated. This is in keeping with the overall legislative intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which favours the substantial involvement of both parents in their children’s lives.
It is of significance that the applicable legislation requires[40] the court first to consider making an order for equal time before turning to consider substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act.
[40] This occurs because of the use of the word “must” in the relevant part of the section.
In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”[41]
[41] See Goode & Goode (2006) FLC 93-286 at 80,898 [paragraph 64]
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time.
This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome. Essentially an equal time arrangement is the normative outcome from proceedings brought pursuant to Part VII of the Act.
Whether it would be in [H] and [P]’s best in interests to live in a shared parenting regime – section 65DAA(1)
The exercise of this consideration must involve the weighing and balancing of the findings which I have made in respect of the various section 60CC factors, set out above, giving greater weight to the primary considerations.
In my view, [H] and [P] are likely to benefit from having a meaningful relationship with both their parents, particularly in having a sense that their parents are equally involved in their lives and caring for them.
This is the intent of the applicable legislation, provided there are no protective concerns raised relating to the actual or psychological health of the children concerned. There are no such concerns relating to [H] and [P] raised in this case.
Accordingly, in the absence of protective concerns, the court is directed to give priority to considerations of the children having a meaningful relationship with both of their parents and, as such, is obliged to actively consider an equal time arrangement.
However, the children concerned, particularly [P], are of tender years. [P] is not yet three. Necessarily, she is not emotionally resilient. As such, Ms Cole was gravely concerned as to how she would deal with an equal time arrangement.
Moreover, it is my view that the mother has provided more of the care of the children up until this stage. As such, to paraphrase Ms Cole, the children, again particularly [P], need predictability and continuity in their care arrangements and need to have ready access to the parent to whom they are more closely attached. In this case, their mother.
However, the father is also highly significant to these children and their ongoing care. His relationship with them is a strong and loving one. This is particularly so given what has occurred since the orders which were made in August 2007. It seems that, notwithstanding the problems in the parties’ relationship, [H] and [P] have accommodated the transition to a substantial and significant time arrangement and are currently doing well.
In all the circumstances of this case, I regard it as inevitable that ultimately, at some stage, [H] and [P] will be cared for in a shared time arrangement by both their parents. This being the outcome which the court is directed to consider first.
Ms Cole does not rule out such a possibility, although she would prefer it to occur in two or three years time, when the children have made the transition to primary school. It is the father’s fervent wish that the children live in a shared care regime as soon as possible.
It is my assessment of his temperament that he will hold steadfastly to his ambition to achieve this result. The mother, with reluctance, acknowledges that such an outcome will most likely occur but wishes to put off consideration of it for now.
Accordingly, the central issue for the court is when and how the shared time arrangement should come into effect, it being my view and finding that such an outcome, in keeping with the legislative parameters, is the outcome which will be in the best interests of [H] and [P].
This is a finely balanced case, both in terms of considerations of practicality, to which I will turn in a moment and considerations of the children’s best interests. Pursuant to section 60CC(3)(l) I am directed to consider, in assessing the children’s best interests, the outcome which is the one least likely to lead to further proceedings between the parties concerned.
In my view, if I accede to the mother’s position it is highly likely that there will be further proceedings between the parties at some stage in the future. I have considerable reservations that the parties will be unable to accommodate the transition to an equal time arrangement, which I regard as inevitable, consensually. As such, the possibility of future litigation between them must be high. This litigation will accentuate their difference in all manner of issues, to the long term detriment of the children.
I do not dismiss Ms Cole’s evidence regarding the likely developmental issues for the children of an equal time arrangement at this stage. However, I am also concerned at potentially leaving these proceedings open ended, particularly as it is my view that ultimately a shared time arrangement is the best outcome for [H] and [P].
Bearing in mind the developmental issues of the children on the one hand and the need to finalise the proceedings between the parties on the other, it is my view that the father’s proposal for a graduated approach to the implementation of a shared time arrangement is the one most calculated to serve [H] and [P]’s best interests.
Reasonable practicality – section 65DAA(5)
The parties live in close proximity in suburban Adelaide. They both have access to motor vehicles. They are accustomed to exchanging the children between them on a regular basis. Accordingly, there are no geographical or logistical restraints to a shared time arrangement.
Ms Cole assesses [H] and [P] to be happy and developmentally normal children. Accordingly, notwithstanding their mutual animus for one another, the parties have, to a very large extent, demonstrated that they are able to implement an arrangement whereby the children spend substantial and significant periods of time with each of their parents.
This arrangement came about as a result of the orders of August 2007, which the mother opposed. Notwithstanding this opposition, it seems that she was able to put her feelings behind her and concentrate on the best interests of the children concerned.
There is no evidence to indicate anything other than that the children are thriving in the current arrangement. To her credit, the mother has played a part in making it work, notwithstanding her irritation with the father from time to time, which has manifested itself in displays of mild pique on her part.
This being so, it seems to me more likely than not that the parties will be able to similarly work together to implement an equal time arrangement, according to the timetable proposed by the father. Certainly, the father, for obvious reasons, would have this facility. The only question mark is whether the mother’s disappointment and perhaps anxiety about such an outcome will act as a bar to her cooperating with the father to make such an arrangement workable in the long term.
These are difficult cases to answer in prospective terms. To a certain extent, it is axiomatic that the parties are likely to have some level of dysfunction in respect of implementing a shared time arrangement. How could it be otherwise, given that each has expended a considerable amount of financial and emotional resources in litigating the issue and want the court to ultimately determine it.
It would be simplistic of the court to expect that shared parental time arrangements could only come about organically or consensually. Necessarily these types of issue are likely to generate considerable controversy between the parties concerned. Is the fact that the parties’ parenting relationship is not of a type which is likely to be highly amenable to a shared parenting relationship reason for the court to rule out such an arrangement in any particular case?
In spite of well meaning legislative intent to reduce or remove the adversarial connotations from child related proceedings, such proceedings remain adversarial in nature, involving as they often do skilled lawyers and issues of credit pertaining to the parties themselves. As anyone know who has been involved in them, proceedings involving children are invariably emotionally gruelling. Obviously such a forum is not usually conducive to the organic creation of cooperative parenting arrangements.
As such, it is not beyond the bounds of possibility that one parent, who is fervently opposed to either a shared time arrangement or a substantial and significant time arrangement will be prone to accentuate the level of difficulty between the parents concerned in order to achieve the outcome he or she prefers and to subvert the intention of section 65DAA. That after all is the nature of adversarial proceedings. Whether such ulterior motives exist in any individual case may be difficult to glean.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[42] Accordingly it is the duty of the parents concerned to do all that they can to facilitate close and continuing relationships between the child concerned and each of his or her parents
[42] See note 1 to section 65DAA(5)
In this case, it is my assessment that the parties have been able to put aside their difficulties with one another to make the current regime more or less workable. The children are doing well. I have no reason to think anything other that, in spite of her likely dissatisfaction with the outcome advocated by the father, the mother will not in future be capable of putting aside her disappointment at such an outcome and be able to focus on the best interests of [H] and [P].
Although different, it is my assessment that the parties are both fundamentally good parents. They have each said they want to get on better with one another. In my assessment, there does seem to be some mutual capacity for them to implement an equal time arrangement, notwithstanding Ms Schneider’s opposition to it.
In this case, I do not think that the mother is artificially inflating the level of disputation between the parties or trying to magnify the practical difficulties in communication, which currently exist between the parties. In my view, these difficulties are very real in the present case. The question is whether these difficulties are so great that they should act as a block to the move from a substantial and significant time arrangement to an equal time one in the short to medium term for [H] and [P]’s care.
In common with the vast majority of parents, who seek an adjudication from the court in respect of arrangements for the care of their children, the parties in this case do not communicate well. At times, their communications with one another have been snide, sarcastic and provocative.
However, notwithstanding these difficulties, they do exchange information about the children between themselves, albeit at times those communications are characterised by a lack of empathy and spontaneity. They do make arrangements for the care of [H] and [P], who appear to be developing well emotionally.
As is obvious from these lengthy reasons for judgment, the parties’ relationship is not the most fertile one from which to grow a shared time parenting arrangement. It could perhaps be said to be axiomatic that this is so given that the parties seeking an adjudication, from the court, regarding the issue.
Again, is the fact that the parents concerned do not have the level of communication skills most conducive to the imposition of a shared parenting arrangement, a sufficient factor to rule out such an arrangement. Obviously, this must be a question of degree in the individual case concerned.
It would be nonsensical if the court could only consider an equal time arrangement in the circumstances most conducive to the facilitation of such an arrangement. As previously indicated, parents who litigate with one another are not likely to produce such optimal circumstances. Necessarily, the vast majority of parents who come to court, at the final stage, do not agree on many issues to do with their children and have problems discussing their difference amicably.
Whatever is the outcome in this case, [H] and [P] will still have to accommodate, in some form or other, the transition between households which mistrust one another, in circumstances where the level of communication is somewhat stilted. However, as Mr Bowler points out there are no complaints, in this case, of overt displays of aggression between the parties in the period since separation. The parties have not made complaints of misconduct to the police about the other parent concerned. Thankfully, they do not have to utilise the neutral confines of a children’s contact centre to exchange the children between them.
As I observed earlier, I must be careful not to apply an unrealistically utopian standard to the parties, particularly in respect of their communication skills. The parties separated, after an unhappy relationship. Inevitably both have experienced some difficulties in adjusting to this change of circumstances. Although far from perfect, it is my assessment that the parties level of communication is sufficient to resolve most of the issues which are likely to arise between them from the implementation of an equal time arrangement.
I suspect that the parties will never completely see eye to eye in regards to a wide range of issues, given the differences in their respective temperaments and personal orientation. This is most clearly demonstrated by the mother’s advocacy of a homeopathic approach to [P]’s eczema and the father’s favouring of a more conventional medical response. However, the issue was resolved, albeit imperfectly from the mother’s perspective.
In any event, issues of this kind will continue to crop up between the parties regardless of whether there is a move to an equal time arrangement or otherwise. In this sense, the distinction between the children spending five, six or seven days per fortnight in their father’s care is largely academic.
Ms Cole cautions against an equal time arrangement because of her concerns at the impact such an arrangement may have on the children, particularly [P]. It is her view that the parties currently unhappy relationship with one another is not conducive to them being able to respond effectively to any signs of distress exhibited by either child arising from such an arrangement.
These are valid concerns. However, at the present time, there is no indication that either child is suffering emotional stress as a result of moving between their parents respective households. To the contrary, it is Ms Cole’s view that both children are travelling well emotionally and are progressing within acceptable developmental parameters.
Accordingly, in my view, it is a matter of considerable conjecture whether the shared time arrangement will have this consequence for the children. I have come to the view that an acceptable approach to the possibility of the children having a detrimental response to an equal time arrangement is to adopt the tiered approach in respect of its implementation, which Mr Pilcher advocates.
Accordingly, having balanced the various factors arising under section 60CC of the Act and the issues pertaining to reasonable practicality raised in section 65DAA(5), it is both likely to be in [H] and [P]’s interests and reasonably practicable if the children do live in a shared time arrangement, provided that this is coordinated with the milestones of [P] firstly turning four years of age and then starting primary school in 2011.
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 three hundred and thirty-two (332) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 13 October 2008
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