Pilcher and Schneider - [2007] FMCAfam 1163

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PILCHER & SCHNEIDER

[2007] FMCAfam 1163

FAMILY LAW – Arrangements pending trial for care of children aged 4 and twenty months – application of presumption of equal shared parental responsibility – allegations of family violence – objective aspect of family violence – reasonable grounds to believe family violence has occurred – whether appropriate that presumption be rebutted – best interests – relevance of ages of children concerned – equal time – substantial and significant time.

Family Law Act 1975, s.60CC; 61DA; 65DAA

Goode & Goode (2006) FLC 92-286

Applicant:

MR PILCHER

Respondent:

MS SCHNEIDER

File number:

ADC 2591 of 2007

Judgment of:

Brown FM

Hearing date:

21 August 2007

Date of last submission:

21 August 2007

Delivered at:

Adelaide

Delivered on:

21 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Bowler

Solicitors for the Applicant:

Di Rosa Lawyers

Counsel for the Respondent:

Mr T.S. Adey

Solicitors for the Respondent:

Adey Lawyers

ORDERS

Until further or other order, I order:

The parties have equal shared parental responsibility for the children of the relationship H born in March 2003 and P born in December 2005.
The said children live with the father as follows;
(i)in alternate weeks from 5:30pm Friday until 8:00am the following Monday (or Tuesday in the event of a public holiday on a Monday);
(ii)in each week from 5:00pm Wednesday until 8:00am Thursday;
(iii)from 12:00 midday on 24 December 2007 until 11:00am on 25 December 2007;
(iv)any other times as may be agreed between the parties from time to time.
The said children live with the mother at all other times.
The parties do collect and return the children at locations to be agreed between the parties but failing agreement at the Mxxx Child Care Centre or at the Kxxx Primary School.
The parties do each keep the other informed of any medical occurrence or accident or medical emergency in respect of the children which may occur from time to time.
The parties do keep the other informed of their residential address and contact details including but not limited to their landline and mobile telephone numbers.
This matter be listed for final hearing on 21 and 22 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 24 January 2008.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
That the parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
Pursuant to section 13C(1)(b) of the Family Law Act the parties do attend a conference at Relationships Australia at a time and date to be advised to the parties, with a family dispute resolution practitioner, to discuss the care, welfare and development of the said children in an endeavour to resolve any differences between the parties in relation thereto.

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

The case of Pilcher and Schneider comes before me this morning in a busy duty list. It is appropriate that I deliver oral reasons for judgment in the case.
I apologise in advance if there are any errors in expression in the reasons, but I think it is better that the parties hear the result now notwithstanding that, if I was given more time, it would most likely be possible for me to perhaps produce longer reasons, which would be more eloquently expressed.
The proceedings before me today concern arrangements, pending trial, for two children: H, born in March 2003, and P, born in December 2005.
The parties to the proceedings are the parents of those two children – their father, Mr Pilcher; and their mother, Ms Schneider. The parties are not married and for reasons of convenience I will refer to Mr Pilcher as the father in these reasons for judgment, and to Ms Schneider as the mother.
The father is the applicant in these proceedings. He seeks orders that would see both children living with their parents in what is usually described as a shared care arrangement. In his application, which was filed on 16 May 2007, he proposed that the children move between his household and the mother’s household, on a week about basis, being exchanged at 5 pm on each Friday.
Today, through his counsel Mr Bowler, he has moderated that position, or changed it rather, and particularly in the light of P’s tender years he proposes an arrangement whereby each week is split up so far as the children’s living arrangements are concerned, with them moving between their parents' respective households on a four‑day/three‑day basis each week, with the four days rotating between the parties, it being his position that, for P in particular, to be away from either of her parents for a period up to seven days would not be in her best interests.
It is the mother’s position that such an arrangement would not be in the best interests of either child. In her response, which has been I think handed to the court today but not as yet formally filed, she proposes that both children live predominantly with her and at this stage spend time with their father on alternate weekends from 5 pm on Friday to 8 am the following Monday, with that period to be extended if the Monday involved is a public holiday.
She also has some proposals in respect of Christmas time, Easter and the children’s birthdays.
Having outlined the respective positions of the parties, it is apparent that this is a case to which the presumption created by section 61DA of the Family Law Act applies. It is the father’s position that the presumption should apply in this particular case.
On the other hand, it is the mother’s position that the presumption is rebutted by issues of family violence which she says in the past has been inflicted upon her by the father. Failing that, it would be her position that it is not appropriate for the presumption to be applied.
At this point I think it is appropriate for me to outline, as best I can, the nature of these proceedings. As each of the parties will be aware, I have not seen either of them in the witness box. I have not seen either of them being asked questions about what has occurred in the past and seeing how they respond to those questions.
I have not heard any evidence from any other people who might be interested in the outcome of these proceedings and who are likely to have material evidence in respect of it. I suspect that there are other persons related to both parties who are interested in the outcome of these proceedings today.
In addition, I have got no expert assessment of the individual needs of these children, particularly their developmental needs from a psychological point of view. I have not got a report from a psychologist or some other suitably qualified expert at this stage.
What I do have is the affidavits which each of the parties have sworn, but because of the nature of these proceedings it is difficult, if not impossible, for me to ascertain the truth or otherwise of very many matters which are in contention between the parties at this stage.
In our system, findings of fact are made after an assessment is made of the credibility of parties from how they present in the witness box; particularly how they deal with cross‑examination. That process has not happened as yet.
What I am dealing with is a case in my duty list, which means that I have to make orders that stand until there can be a more exhaustive hearing of all the issues which the parties have raised.
There is some dispute between the parties as to what should happen with the matter now, but I have decided that I am going to fix the parties' competing applications for a final hearing.
Regrettably that will be in the New Year. It will be in February of next year, so the orders I am going to make today, stand only until February of next year. It is a period of about six months.
By way of background, it seems that the parties met each other some time in 2001. It seems uncontroversial that they began to live together in 2002. It also seems to be uncontroversial that they separated around May of 2006.
At that stage the mother left where the parties were living and the two children concerned went to live with her. Obviously at that stage P was a child of less than six months of age. It seems that she was being breastfed at that time.
Both parties work. Both parties are professional people. The father is an accountant. I am told he works for a large multinational company. The mother is employed, again by a large international firm.
She is working, it seems, on a part‑time basis and certainly from the father’s perspective as set out in his affidavit, it seems that she works on Wednesdays, Thursdays and Fridays, and during those times the children are in child care of one form or other.
It is the father’s position that, since the parties separated, he has patiently wished to play more of an active role in the care of the two children concerned. It is, I think, his position that he has been sensitive to the developmental needs of P in particular, but it has now become his position that it is appropriate for an equal time arrangement to come into place.
The mother’s position is that she feels she has been, to some degree, badgered or hectored by the father regarding arrangements for the care of the two children. It is her position that she has responded to those concerns perhaps at times against her better judgment, and an arrangement has come into place whereby the two children concerned spend alternate weekends with their father.
It is the mother’s position, at this stage, that it would not be in the children’s best interests for that arrangement to be extended hastily, but it does seem to be agreed between the parties that the arrangement whereby the children spend overnight periods at weekends with their father - that this arrangement is one which it is agreed should remain in place.
There are very many areas of dispute between the parties. I have already alluded to the issue of violence and I will come back to it in due course. It is the mother’s position that the father was violent towards her during the parties' relationship with one another and has a domineering personality, so far as she is concerned.
The father refutes any suggestion that this is the case and, as I say, it is his position that he has always been respectful of the mother and any communications that have passed between the parties, since they separated, have been appropriate ones.
It is also the father’s position that although he holds a responsible position, his employers can provide him with flexibility, so far as his working hours are concerned, and he will be able to accommodate both his commitments for work and his responsibilities to care for the two children, if the court makes the orders which he seeks.
The mother does not accept that. It is her position that, in the past, she has offered the father more time with the children, which he has declined because of his working hours. It is the mother’s position that the father lacks understanding of the onerous responsibilities involved in caring for children of the ages of P and H, and he has not thought through his requirements for work.
She is critical of the father’s suggestion that he will engage two other of his children, from an earlier relationship, to assist with him caring for H and P from time to time. Those children are J and A. J is 18. She is a university student. A is 17. I think she is still at school, although I might be mistaken about that. The father proposes that J will move into his home, A will not, but these two will assist him.
The mother points to the ages of J and A and says that inevitably they will be more interested in their social lives and other interests, and it is naive of the father to expect that these two children will assist him to any great degree.
In this case both parties assert, to some degree or another, that the other party is motivated by considerations of finances, particularly the application of the child support system to whatever arrangement ultimately comes into place.
The mother in particular points to a letter which the father wrote to her in June of this year, in which he indicates that he wants to have an arrangement which the Child Support Agency will deem to be substantial care of the two children.
The mother categorises this as demonstrating a lack of insight into the needs of the two children concerned. However, the father himself alleges that the mother really has no concern about the periods of time the children spend with him, so long as the child support assessment, which is currently in place, remains the same.
I outline these matters for this reason – it is to point out that at this stage it is very difficult for me to resolve definitively, one way or the other, the truth or otherwise of very many of these assertions. It is also not unknown for parties to a marriage or a relationship to be quite honest but to have a radically different view of what has occurred in the past in their relationship because of their very different perspectives on it.
As I remarked during the course of hearing submissions from the lawyers concerned, the child support scheme is a very controversial piece of legislation. It is not my role to have anything to do with the assessment of child support for these two children. There is a formula crated by the applicable legislation which sets the assessment. But I am not blind to what I suspect are the difficult financial circumstances of both parties and which must have consequences for the level of tension between them.
I am also aware that they are going through proceedings in the District Court regarding the division of property between them, and I suspect that financial issues are a cause of great stress to both parties, who have to accommodate living in separate households when they were formerly in the same household, and have to deal with all sorts of other major financial expenses that flow from their fairly recent separation. There are lots of difficulties in this matter, from both parties' points of view.
It is now necessary, as best I can, to outline the legal principles that I have to apply in this case. The law pertaining to the making of parenting orders - and what both parties ask me to do is to make a parenting order - is set out in Part VII of the Family Law Act.
As both parties may be aware, that part of the act has recently been significantly amended. The amendment is contained in an act of parliament called the Family Law Amendment (Shared Parental Responsibility) Act 2006. Undoubtedly, it is a very significant amendment.
At this stage there is not a great deal of law from the superior courts as to how the legislation is to be applied. The most significant case which deals with the legislation is a case called Goode & Goode[1]. It is a decision of the Full Court of the Family Court. In that decision the Full Court said as follows:
In our view it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.
[1] Goode & Goode (2006) FLC 92-286
There is no distinction in the legislation as to how the law is to be applied at the interim as opposed to the final stage. In this, as in all cases to do with children, the best interests of the children concerned is the paramount or most important consideration.
At the commencement of Part VII there is a list of aims and principles which I am required to bear in mind in whatever order I make. I am not going to read out all those objects and principles, but I have to consider the benefit of children having both their parents meaningfully involved in their lives.
I also have to bear in mind that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, living together or whether they have never lived together.
As I say, whatever order I make today, I have to be satisfied that it is likely to be in the best interests of both H and P. Given the differences in their age, it may be that they have different requirements so far as their best interests are concerned.
However, in determining what is likely to be the best outcome for the two children concerned, my discretion is not unfettered. I have to consider a long list of matters in section 60CC of the Family Law Act. There are two categories of matters that I have to consider. If you like, there is a hierarchy in the importance of these matters.
The first type of matter are called primary considerations. Necessarily, they are to be regarded as more important than the other matters which are designated as additional.
The primary considerations are twofold. Firstly, I have to consider the benefit of the two children concerned having a meaningful relationship with both their parents. Secondly, I have to consider the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Obviously in this case the parties have different views as to which of those considerations is likely to be the more pivotal one. From the father’s perspective, he points to the desirability of both children having a meaningful relationship with him and their mother, which from his point of view will best be achieved if there is an equal care arrangement. From the mother’s point of view, she places emphasis on issues to do with family violence.
In section 60CC(3) are set out the additional considerations. At this stage I will not outline them all, but the Full Court in Goode & Goode has indicated that I am required to make findings, wherever possible, about each of the matters set out in section 60CC, notwithstanding that this is an interim hearing, in which it will be difficult for me to make definitive findings of fact.
Because of the change in the legislation and the heightened emphasis on the parents of children being involved in the lives and care of their children, the legislature has created a presumption. Both parties' lawyers have raised the presumption with me. It is contained in section 61DA of the Family Law Act.
I have to consider this presumption before I make any parenting order. It is, if you like, the starting point. The presumption is that it is taken to be in the best interests of the child concerned in the proceedings before the court, for his or her parents to have equal shared parental responsibility for the child.
Section 61DA is qualified on a number of bases. The presumption is rebutted if there are reasonable grounds to believe that child abuse or family violence has occurred [section 61DA(2)]. Pursuant to section 61DA(4), the presumption may also be rebutted if evidence exists which satisfies the court that it would not be in the best interests of the child or children concerned for an order for shared equal parental responsibility to be made.

Finally, pursuant to section61DA(3), which applies only at the interim stage, the court has a discretion not to apply the presumption where the circumstances are such that it would not be appropriate to do so.
In Goode, the case to which I have referred, the Full Court has indicated that this discretion is not to be exercised in a broad exclusionary manner but only in circumstances where limited evidence may make the application of the presumption or its rebuttal difficult.
Issues of family violence loom large in this case, it being the mother’s starting position that the presumption of equal shared parental responsibility should be rebutted pursuant to section 61DA(2). She has deposed in her affidavit material to what she says was an extremely unhappy relationship, from her perspective, with the father whilst the parties were living together.
Briefly, she asserts that the father wished to isolate her from familial support and would not allow her to spend time with her friends or socialise with workmates. She categorises the father as being controlling of her and critical of her housekeeping and parenting. She describes him as a bully. All this, from her perspective, had consequences for her level of self‑esteem.
It is common ground between the parties that when H was about

18 months of age, the mother was diagnosed with postnatal depression. I have some brief evidence from the mother’s doctor - a Dr B - and I also have a brief letter from a domestic violence service.
It is the father’s position that the complaints, which I have already outlined do not amount to family violence for the purposes of the Family Law Act, and I will come back to the definition in a moment.
However, the mother also specifically claims that she has been physically assaulted by the father, as a result of being pushed and having items thrown at her. She says that this behaviour became more pronounced when she was pregnant with P.
The father is critical that these allegations are not given with any great detail, particularly in regard to when they allegedly occurred, and are not supported by any other evidence. By implication he suggests this effects the weight which can be given to them.
The letter from Dr B indicates that the mother was treated for postnatal depression and when she reported her symptoms to the Doctor, the mother also claimed of a lack of support, both emotional and practical, from the father.
Mr Bowler points to the fact that it is unlikely that, if the mother had been the victim of direct physical assaults, she would not have raised these concerns specifically with Dr B.
The letter from the Central Domestic Violence Service indicates that Ms Schneider presented as a timid and fragile person, who complained of being physically abused.
The definition of "family violence" is contained in section 4 of the Family Law Act. It means:
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.
There is now an objective aspect to the definition of "family violence". A person’s fear of another person must be reasonable. Family violence must evince fear or apprehension. It is the father’s position that he denies being domineering and vehemently denies being violent. However, even if the court accepts the mother’s complaints about domineering behaviour, it is his position that the mother’s complaints do not amount to family violence.
It seems clear that assaults obviously can be family violence. However, the father points to the fact that there is nothing unequivocal to support the mother’s claims of such violence and in his submission the court cannot reach the conclusion that there are reasonable grounds at this stage to believe that the father has engaged in family violence. It is his word against hers.
At this stage on the basis of the evidence before me, I do not believe that there are currently reasonable grounds on which I can believe that the father has engaged in family violence towards the mother. I cannot make a finding either way.
Family violence is a difficult issue. It is of course very often the case that family violence occurs in private. It is very often the case that its victims are too frightened or embarrassed to report it and, as a result of that, it is difficult for there to be conclusive evidence either one way or the other that it has existed.
It seems that it is for reasons of that kind that section 61DA(3) was inserted into the legislation, and it is likely to be pivotal in cases such as this one. However, for the reasons I have already provided, it seems clear to me that the discretion that is provided by the subsection is to be used within the broad thrust of the legislature’s intention regarding the desirability of shared parental arrangements for the care of children.
Clearly I think considerations of family violence are prospective. They are intended to protect children from harm in the future. As a result, I think, in this particular case, it is significant that the mother does not allege that she has been subjected to any violent behaviour since the parties separated, now in excess of 12 months ago.
I have been provided with a number of text messages which have passed between the parties, and some correspondence. The correspondence and the text messages, I suppose, cannot be described as being warm in nature, but I do not think the correspondence can be described as threatening.
For those reasons, I have come to the conclusion that the presumption in this matter is not rebutted at this stage. I do not think it would be appropriate in all the circumstances of this case for it to not to apply. However, the presumption itself does not determine how much time the children are to spend with each of their parents. That is determined by section 65DAA.
If the presumption does apply, I am required to consider first the children spending equal time with both their parents. However, in considering that exercise, I must also consider whether such an arrangement would be in the best interests of the children concerned and also whether it would be reasonably practicable.
Accordingly, in determining whether the shared care arrangement is likely to be in the best interests of the children at this stage, I have to return to the matters outlined in section 60CC and determine whether it is likely to be in their best interests. I also have to consider issues of practicality. Those matters are essentially set out in section 65DAA(5).
Turning to those considerations now, in terms of the potential for the children to be exposed to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, in this case I do not think that either party would willingly neglect or abuse either child. Although it is possible that the parties had an unhappy relationship during their married life, I think the likelihood of the children being exposed to family violence in the future is much reduced. The parties now live in separate households.
Accordingly, in this case I think the other primary consideration that the court is required to consider, the benefit of the children having a meaningful relationship with both of their parents, assumes some paramountcy.
I turn to the additional considerations. The children are too young to express any view one way or the other. I have to consider the nature of the relationship of each child with each of their parents and with other people who are likely to be significant to their ongoing care and development.
In this case I am satisfied that both parents have a close and loving relationship with both H and P. In this case, however, I think that considerations of P’s particular age – and I am entitled pursuant to placita (g) of section 60CC(3) to consider her level of maturity – I think P’s age is significant.
She is around 19 or 20 months of age. She is clearly a child of tender years and early development. She has been breastfed for much of her life to date and when the parties separated, it seems clear that the father – perhaps with some resistance – conceded that the children’s best interests – particularly P’s – would be served by her remaining predominantly in the care of her mother.
The difficult issues in cases of this sort is that inevitably the parent in the mother’s position wishes to move at a cautious pace in regard to relationships being advanced between young children and the other parent concerned, after marital relationship failure. From the other parent’s perspective – and invariably it is the father – he or she feels frustrated at the slow pace and feels that he or she is beholden to the unreasonable strictures of the other parent.
That, unfortunately, is a common dynamic in cases such as this one and such difficulties are exacerbated when the parties concerned mistrust one another, which is clearly the case in this particular matter. The mother categorises the father as being domineering or bullying, whilst on the other hand, it is the father’s perspective that he is just pursuing what he believes is appropriate for the children concerned.
In this case I think the nature of the relationship of both the children with their mother is a significant consideration. This relates to the ages of the children, particularly P.
I have to consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. From the father’s perspective, the mother could do better. The mother’s perspective is that she has come to this three‑night arrangement per fortnight, which indicates that she is willing to facilitate a relationship between the children and their father.
I have to consider the likely effect of any changes in the child’s circumstances. The mother’s position is that the father’s proposal will be a very dramatic one for both children, but particularly for P. From the father’s perspective, it is not likely to be all that dramatic as they already spend three consecutive evenings with him per fortnight.
At this stage it is difficult to have any concluded view about whether the mother’s position is right or the father’s position is right. I do not have any psychological assessment of the likely developmental consequences for P in particular of the shared care arrangement which the father desires. That is one reason why Mr Adey - who appears for the mother - urges me to be cautious rather than unduly experimental.
I also have to consider the parental capacity of each of the parties and their level of insight into the responsibilities of being a parent. Unfortunately, and perhaps inevitably, both parties are somewhat jaundiced about the other’s parental ability at this stage.
However, I think it is significant that although the mother has some criticisms of the father - particularly what she sees as his lack of understanding of how his work requirements will impact upon the two children and her concerns about involving the father’s proposals that A and J play a role in the care of these two children - I think it is telling that the mother does not have any particularly compelling complaints about the father’s ability to care for these two children in terms of the nuts and bolts of the children’s needs. She does not complain that the children are not properly housed or fed, or tended.
As I have already indicated, the mother is particularly critical of the father for placing emphasis on child support implications which may arise from whatever orders are made today. In the past it has been said that a parent’s attitude towards paying child support is a matter that can be taken into account, but this is not a case where Mr Pilcher is not paying child support. He is paying child support.
He has pursued his entitlements to have assessments changed and have payments taken into account by the agency. I do not think I can be critical of him for that. He is entitled to do that under the relevant legislation. Of course I suppose he is also entitled to be critical about the level of assessment and how the formula works, but it cannot be said that he is not paying child support.
At this stage I am satisfied that both parties are, I think, loving parents and capable parents. The conflict between them and perhaps their different personalities may cause them to place different degrees of emphasis on different aspects of parenting. That is a common thing.
I have to consider what sort of orders are least likely to lead to the institution of further proceedings. At this stage I am going to make orders until February of next year.
Mr Adey urges me to obtain a family assessment which may assist not only the court, but also the parties, to advance the matter. Mr Bowler urges me to allow the parties to explore settlement issues between them prior to ordering such an assessment or fixing the matter to final hearing. At this point I have come to the view that I ought to explore both aspects.
In terms of practicality, the matters that are contained in section 65DAA are as follows: how far apart the parties live; the parties' current and future capacity to implement an arrangement for the children spending equal time, or substantial and significant time, with each of their parents; the parents' current and future capacity to communicate with one another and resolve difficulties that might arise, and the impact that such an arrangement may have on the children concerned. Some of these practical aspects are intertwined with the best interest considerations to which I have alluded a short time ago.
The parties live close together, obviously. At this stage I have some reservations that they have much capacity to implement an arrangement for H and P to be shared equally between them. Certainly the mother mistrusts the father. The parties communicate, it seems, through text messages.
I think in one of his letters the father alludes to the fact that it is his apprehension that the mother has chosen to communicate only via text messages with him, and that does cause me some concern as to the parties' likely capacity to solve problems that may exist or which may arise between them in future.
I think I would be naive to think that there would not be lots of problems that are going to arise between the parties. Above all, I have to consider the impact that a shared care arrangement is likely to have on both H and P.
At this point I confess I just do not know. I am concerned about P’s tender years. I am concerned about her in particular being away from her mother for roughly half of the time in future at this stage. I think that that is a factor which causes me to have concerns both as to whether the shared care arrangement is likely to be in P’s best interests and to be reasonably practicable.
I confess that I am not persuaded that it is likely to be in P and indeed H’s best interests at this stage. I think at this stage the shared care arrangement is likely to be fraught with a significant degree of difficulty. I am, however, having rejected equal time, required to consider substantial and significant time.
Substantial and significant time is defined in the Act at section 65DAA(3). It is time that a child spends with parents on both weekends and holidays, and days that do not fall on weekends and holidays but, perhaps more importantly, it is time that allows a parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child or children concerned.
The Act I think was changed, because in the past parents who felt they had been categorised as being a contact parent felt excluded from the lives of their children and felt confined to a subsidiary role, which was less important than that of the residence providing parent.
It was for that reason that this definition of substantial and significant time, I think, was probably inserted into the Act. The definition is defined so that parents, pursuant to it get to spend time on both weekends, school holidays and weekdays with their children.
Having said that, it is apparent I think that those types of considerations are less applicable to children of the ages of H and particularly P. To P who does not attend school, and H who I think it is planned will attend school in the future - next year I think - those considerations are less important.
What is important I think is that the court is required to consider making orders that allow both parents to feel involved in their children’s daily routine, and no doubt it is the father’s complaint that he does not feel involved in the children’s daily routine, as he sees them primarily on weekends.
I have come to the view that there should be an arrangement whereby, within the meaning of section 65DAA(3), the children spend substantial and significant time with both their parents. I think this must mean some advance being made on the mother’s proposal.
What I propose doing is making an order that the father spend time with the children in each week, overnight on Wednesdays, as well as the alternate weekend arrangement, which the mother proposes. That from the father’s point of view will be a modest advance; from the mother’s point of view, I suspect she will think it inappropriately hasty.
Bearing in mind the structure of the Act, the principles and the fact that I have formed the view that the presumption applies and that it is likely to be in the best interests of the children for them to spend substantial and significant time - and particularly bearing in mind P’s tender years – and in saying that I think it is apparent that one size, as it were, does not fit every family, so far as parenting orders are concerned – I consider such an arrangement is likely to be in the best interests of the children, pending the trial of this matter.
At this stage for reasons which I think I have already provided, I think a family assessment will be of assistance to the court and indeed to the parties in determining how this matter should be finalised; particularly what outcome is likely to be the appropriate one for children of these tender years.
I should say that in terms of reasonable practicality, the parties both work of course – invariably parents in this day and age are compelled o work – but the mother’s work commitments are not as onerous as the father’s at this stage, and I think that is another factor that militates against the shared parenting arrangement.
I will make orders in respect of arrangements for Christmas. I will make orders in respect of the handover point for the children and fix the matter for final hearing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 21 August 2008