POLITES & STATHOS
[2013] FamCA 1002
FAMILY COURT OF AUSTRALIA
| POLITES & STATHOS | [2013] FamCA 1002 |
| FAMILY LAW – CHILDREN – Best Interests – Whether granting equal shared parental responsibility would be in the best interests of the child – Whether granting equal shared parental responsibility would be reasonably practicable – Where there are no allegations of any substance abuse, family violence or mental health issues – Where the parties live about 40 kilometres apart – Where the presumption for equal shared parental responsibility is not rebutted – Where it is in the best interests of the children to spend substantial and significant time with each parent – Where an order is made that the children live with the mother – Where an order is made that the children spend each alternate weekend and Wednesday with the father. |
| Evidence Act 1995 (Cth) | |||
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| APPLICANT: | Ms Polites |
| RESPONDENT: | Mr Stathos |
| FILE NUMBER: | SYC | 905 | of | 2011 |
| DATE DELIVERED: | 18 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 9, 10 December 2013 |
REPRESENTATION
| APPLICANT: | Mother in person |
| COUNSEL FOR THE RESPONDENT: | Mr Givney |
| SOLICITOR FOR THE RESPONDENT: | Maclarens Lawyers |
Orders
The Mother and the Father have equal shared parental responsibility for the children N Stathos born … 2004 and V Stathos born … 2005 (the children) in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:
(a)The education of the children – both current and future;
(b)The religion of the children;
(c)The health of the children; and
(d)Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
Each of the parties shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children live with or spend time with that parent.
The children shall live with the Mother.
The children shall spend time with the Father as follows:
(a)During school term on each alternate weekend from 6.30 pm on Friday until 5.00 pm on Sunday, commencing on the weekend after the second week of each new school term.
(b)During school term from 6.30 pm to 8.30 pm each alternate Wednesday, falling immediately prior to the alternate weekend time.
(c)From 6.00 pm on the day before Father’s Day until 6.00 pm on Father’s Day.
(d)For the whole of the second term school holidays.
(e)For the second half of the first and third school term holidays;
(f)In the event the Father’s time includes Greek Orthodox Easter weekend then the Father’s time for that period will be suspended.
(g)From 6.00 pm 13 January to 10.00 am on the day before the children return to commence the new school term.
(h)From 6.00 pm Christmas Eve to 12 noon Christmas Day in years when December falls in a year with an even number and from 12 noon Christmas Day to 6.00 pm Boxing Day in years when December falls in years ending with an odd number.
(i)Such other times as may be agreed between the parties.
The Father’s time with the children is suspended as follows:
(a)From 6.00 pm on the day before Mother’s Day for the rest of that weekend.
To give effect to Order 4 the following shall apply:-
(a)On alternate Wednesdays during school terms, the Father shall collect the children from and return them to the Mother’s residence.
(b)At all other times the Father shall collect the children from the Mother’s residence at the commencement of his time and the Mother shall collect the children from the Father’s residence at the conclusion of his time. However, on the first of the Father’s weekends in each school term in lieu of the Mother collecting the children, the Father will return the children to the Mother’s residence.
(c)The Father’s time in school holidays shall commence at 6.00 pm on the first Saturday of the July school holidays or 6.00 pm on the midpoint day as the case may be and conclude at 10.00 am on the day before the children return to commence the new school term.
(d)In calculating school holiday time the parties shall count the number of days of the school holiday including the last day of the school term and the day before the new school term commences including pupil free days. If there are two midpoint days then the Father’s time shall commence on the second midpoint day.
(e)Unless the Father otherwise agrees, he is not obliged to take the children to Nippers and/or swimming lessons or any other organised activity arranged by the Mother when he is having time with the children.
(f)The Father shall ensure N’s attendance at competition football games when he is in the Father’s care pursuant to these Orders.
(g)Unless the Mother otherwise agrees, she is not obliged to take the children to any organised activity arranged by the Father when she has time with the children pursuant to these Orders.
Each of the parents shall refrain from making critical or derogatory remarks about the other parent or members of his/her family in the presence or within the hearing of either of the children and shall do all things reasonably necessary to ensure that no other person does so.
Each parent be entitled to attend all events involving the children including, but not limited to:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance or participation;
(c)School functions and events that allow for parental attendance or participation AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
Each of the parents shall ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a)Any medical problems or illness suffered by the children, whilst in their care;
(b)Any medication that has been prescribed for the children;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)Any sporting, school or religious function or friend’s birthday which the children are to attend;
(e)Their residential address;
(f)Their telephone contact numbers;
(g)Any other matter relevant to the welfare of the children.
For purpose of communicating information between the parents, the Father and the Mother shall communicate by:
(a) Telephone.
(b) Email.
(c) Text message.
(d) Mail.
The children shall have the following communication with the parents:
(a)Reasonable telephone communication with the absent parent, with the absent parent to initiate such calls between the hours of 4.00 pm to 6.00 pm each day;
(b)Each parent shall advise the other of their telephone contact details should he/she be away on any extended period with the children.
(c)Each parent shall ensure the children have privacy during telephone conversations with the other parent.
(d)Any letters, mail and gifts forwarded by the other parent shall be provided to the children unopened.
(e)The children shall be permitted to telephone the parent they are not then with at any reasonable time they wish.
Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the children to provide both parents with any and all information and both parents shall be entitled to attend upon any appointments, such attendance to be at the discretion of the provider.
Each of the parents is restrained from committing the children to any activities which fall during a period of time when the children are to be with the other parent [in circumstances where the other parent would be required to take the child to that activity] pursuant to these Orders without first in writing consulting and obtaining the written approval of the other parent. Such written approval is then to be sought and obtained on an annual basis.
Each of the parents is restrained from requesting or directing the children to convey any information or request to the other parent.
The parents shall notify the other parent in the event that they intend to leave the children in the care of someone else for three or more nights.
By consent the parties shall do all things and sign all documents necessary for the issue of passports for each of the children.
Except for periods necessary for travel with the father, the parties will ensure that the children’s passports will remain in the possession of the mother.
The court noted that the Father’s consent to joining in placing the child N on waiting lists for P School, Suburb Y and A School, Suburb B and both children on a waiting list for L School, Suburb B does not reflect his consent to the children attending one of those schools but to only to placing their names on the waiting lists for those schools
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Leave is granted to the parties to apply in relation to the wording of these orders within 28 days, or such further time as the parties may agree, on giving at least seven days’ notice to the Court and each other.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Polites & Stathos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 905 of 2011
| Ms Polites |
Applicant
And
| Mr Stathos |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings involving N Stathos who was born in 2004 and at the time of the hearing was nine years of age and V Stathos who was born in 2005 and at the time of the hearing was seven years of age. The applicant mother is Ms Polites (“the mother”) and the respondent father is Mr Stathos (“the father”).
The disputed issues include one aspect of parental responsibility, the extent of the father’s time with the children and issues about the children’s commitments. It should be recorded at the outset that these proceedings do not involve any of the pathology that usually characterises families requiring a judicial determination of their parenting dispute. Happily, there are no allegations of substance abuse, family violence or mental illness. For that reason there is no question of supervision or whether overnight time should occur. The parents are competent and loving and the children are healthy, progressing well and enjoy good relationships with their parents. The court is called on to choose between one option or another because the parties were not able to make those choices. The court is left to exercise discretion between acceptable options and there are virtually no questions of principle involved. The issues might more appropriately have been addressed in the Federal Circuit Court.
Applications
The father commenced the parenting phase of the proceedings and sought orders to the following effect:
1.The Mother and the Father have equal shared parental responsibility for the children [N Stathos] born … 2004 and [V Stathos] born … 2005 (the children) in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:
1.1.The education of the children – both current and future;
1.2.The religion of the children;
1.3.The health of the children;
1.4.Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
2.Each of the parties shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children live with or spend time with that parent.
3.The children shall live with the Mother.
4.The children shall spend time with the Father as follows:
4.1.During school term on each alternate weekend from 6.30pm on Friday until 6pm on Sunday, commencing on the second weekend of each new school term.
4.2.During school term from 6.30pm to 8.30pm each alternate Wednesday, falling immediately prior to the alternate weekend time.
4.3.From 6pm on the day before Father’s Day until 6pm on Father’s Day.
4.4.For the whole of the second term school holidays.
4.5.For the second half of the first and third school holidays. In the event the Father’s time includes Greek Orthodox Easter Saturday and Sunday then the Father’s time for that period will be suspended.
4.6.From 12:00 noon 13 January to 12:00 noon 27 January of each year.
4.7.From 6:00pm Christmas Eve to 12:00 noon Christmas Day in years when December falls in a year with an even number and from 12:00 noon Christmas Day to 6:00pm Boxing Day in years when December falls in years ending with an odd number.
4.8.Such other times as may be agreed between the parties.
5.The Father’s time with the children is suspended as follows:
5.1.From 6pm on the day before Mother’s Day for the rest of that weekend.
6.To give effect to Order 4 the following shall apply:-
6.1.On alternate Wednesdays during school terms, the Father shall collect the children from and return them to the Mother’s residence.
6.2.At all other times the Father shall collect the children from the Mother’s residence at the commencement of his time and the Mother shall collect the children from the Father’s residence at the conclusion of his time.
6.3.The Father’s time in school holidays shall commence at 6:00pm on the last day of the school term or 6:00pm on the midpoint day as the case may be and conclude at 6:00pm on the day before the new school term commences.
6.4.In calculating school holiday time the parties shall count the number of days of the school holiday including the last day of the school term and the day before the new school term commences including pupil free days. If there are two midpoint days then the Father’s time shall commence on the second midpoint day.
6.5.Subject to Order 6.6 the Father is not obliged to take the children to Nippers and/or swimming lessons or any other organised activity arranged by the Mother when he is having time with the children.
6.6.The Father shall ensure [the child N’s] attendance at competition [football] games when he is in the Father’s care pursuant to these Orders.
6.7.The Mother is not obliged to take the children to any organised activity arranged by the Father when she has time with the children pursuant to these Orders.
7.Each of the parents shall refrain from making critical or derogatory remarks about the other parent or members of his/her family in the presence or within the hearing of any of the children and shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of his/her family in the presence or within the hearing of any of the children.
8.Each parent be entitled to attend all events involving the children including, but not limited to:
8.1.Sporting fixtures;
8.2.Extracurricular activities that allow for parental attendance or participation;
8.3.School functions and events that allow for parental attendance or participation AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
9.Each of the parents shall ensure that the other parent is kept informed as soon as is reasonably practicable of:
9.1.Any medical problems or illness suffered by the children, whilst in their care;
9.2.Any medication that has been prescribed for the children;
9.3.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
9.4.Any social, school or religious functions which the children are to attend;
9.5.Their residential address;
9.6.Their telephone contact numbers;
9.7.Any other matter relevant to the welfare of the children.
10.For purpose of communicating information between the parents, the Father and the Mother shall communicate by:
10.1.Telephone.
10.2.Email.
10.3.Text message.
10.4.Mail.
11.The children shall have the following communication with the parents:
11.1.Reasonable telephone communication with the Mother when with the Father, with the Mother to initiate such calls to be between the hours of 4pm to 6pm each day the children are not in her care.
11.2.Reasonable telephone communication with the Father when with the Mother, with the Father to initiate such calls to be between the hours of 4pm to 7pm each day the children are not in his care.
11.3.Each parent shall advise the other of their telephone contact details should he/she be away on any extended period with the children.
11.4.Each parent shall ensure the children have privacy during telephone conversations with the other parent.
11.5.Any letters, mail and gifts forwarded by the other parent shall be provided to the children unopened.
11.6.The children shall be permitted to telephone the parent they are not then with at any time they wish.
11.7.The Father shall be at liberty to communicate with the children by Skype in lieu of telephone communication provided that the Father provides the children with a laptop computer with the appropriate software.
12.Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the children to provide both parents with any and all information and both parents shall be entitled to attend upon any appointments, such attendance to be at the discretion of the provider.
13.Each of the parents is restrained from committing the children to any activities which fall during a period of time when the children are to be with the other parent [in circumstances where the other parent would be required to take the child to that activity] pursuant to these Orders without first in writing consulting and obtaining the written approval of the other parent. Such written approval is then to be given and obtained on an annual basis.
14.Each of the parents is restrained from requesting or directing the children to convey any information or request to the other parent.
15.The wife shall notify the husband in the event that she is required to travel in the course of her employment and stay away from her home for one or more nights.
16.In the event that the wife is required to travel in the course of her employment and stay away from her home for one or more nights, then she shall give the husband the option to care for the children during her absence.
At the commencement of the hearing the father’s counsel advised that the father also sought an order to the effect that the children spend time with the father on 29 December 2013 for three hours unless the children are away with the mother on holidays on that day. During the hearing the father indicated that contrary to the detail of the orders sought in his Case Outline, the children could be with the mother for all of each Greek Easter weekend and he would not seek the implementation of communication between the parents via a communication book. The father also agreed that he would facilitate the Friday night activities for the children.
The mother changed her proposals during the hearing. Ultimately she sought orders largely in terms of her amended application filed 18 November 2013, to the following effect:
a)That the parents have joint parental responsibility for the children save for education in which respect the mother shall solely determine the schools they will attend and the costs will be met equally by the parties.
b)The children live with the mother at all times except when they are with their father which will be:
i.8.00 am Saturday to 4.00 pm Sunday each alternate weekend;
ii.10.00 am to 4.30 pm on Christmas Day in even numbered years;
iii.For the second half of the school holidays at the end of term 1, ending at 10.00 am on the Development Day prior to the resumption of term 2;
iv.For all of the July school holidays ending on the Development Day prior to the resumption of term 3;
v.For the second half of the school holidays at the end of term 3, ending at 10.00 am on the Development Day prior to the resumption of term 4;
vi.For the period in the Christmas school holidays starting on 14 January and concluding at 10am on the Development Day prior to the commencement of term 1 in the next school year;
vii.From 9.00 am to 11.00am on each of the children’s birthdays;
viii.From 9.00 am to 4.00 pm on Fathers’ Day;
c)That the father’s time be suspended on:
i)Mothers’ Day from 9.00 am to 4.30 pm
ii)The mother’s birthday from 9.00 am to 4.30 pm
iii)Maternal grandmother’s birthday …
iv)Greek Orthodox Easter Saturday and Sunday (note the father’s agreement that the children will be with the mother for all of that weekend)
d)That the father ensure that the children attend any sporting activities or friend’s birthdays which occur when they are with him;
e)That the father collect the children at the commencement of each occasion when they are to be with him and that he return them back at the end of each such occasion;
f)That the father advise the mother of any illness or injury suffered by either child;
g)Each of the parties requires the prior written agreement of the other to take the children overseas. Each of the parties must provide to the other a copy of return airline tickets (if applicable), contact telephone numbers and relevant addresses for international or interstate travel;
h)Costs
I explained to the mother that in respect of the order she seeks about school fees, that issue would need to be the subject of a child support application. The mother revised her Christmas proposal to the effect that she sought that the father spend time with the children from 10 am to 6.00 pm Christmas Eve 2013 and on each alternate year thereafter and from 6.00 pm Christmas Eve to 11.00 am Boxing Day in 2014 and each alternate year thereafter.
Written Evidence
The father relied on:
a.Affidavit of the father sworn 18 November 2013
b.Affidavit of Ms D sworn 18 November 2013
The mother relied on:
a.Affidavit of the mother filed 18 November 2013
Expert Evidence
The following expert evidence was relied on:
a.Family Report of Ms M dated 15 January 2013
b.Child Responsive Programme Memorandum dated 11 November 2011
The Hearing
The hearing commenced on 9 December 2013. On 10 December 2013 judgment was reserved. Neither Ms D nor Ms M were required for cross-examination.
Short History
The wife was born in 1975 and as at the date of the hearing was 37 years of age. The husband was born in 1970 and was 43 years of age. The parties were married in 2000 and divorced on 16 June 2011. There are two children of the relationship, namely N who was born in 2004 and is currently nine years of age and V who was born in 2005 and is currently seven years of age.
Background Facts
The parties initially lived together in a home in Suburb X. Between 2007 and 2008 the parties moved to Suburb W (“the former matrimonial home”).
Around July 2010, following separation, the mother remained in the matrimonial home and the father moved into his mother’s home at Suburb X. The children lived with the mother and spent time with the father on alternate weekends from 9.00 am to 5.00 pm on each of Saturday and Sunday.
At the time of separation and throughout the relationship the mother was employed by C Pty Ltd in various capacities. The mother was required to travel on a regular basis as part of her employment. The mother was able to work from home one day of the week in the latter years of the relationship. The mother’s parents often cared for the children.
The mother alleged that throughout the marriage the husband worked from 5.00 am to 6.00-7.00 pm each day and made minimal contributions in terms of parenting, housework and cleaning. At the time of separation the father had recently obtained a new position as a senior manager for F Pty Ltd where he worked Monday to Friday from 8.00 am to 5.00 pm and was required to travel interstate on a regular basis.
In or around July 2010 the mother enrolled the child N to play football on Saturdays, during winter months. The mother also arranged for the children to attend swimming lessons on Saturdays and Nippers on Sundays. The father took the children to these activities during his time with them.
On 16 February 2011 the mother commenced proceedings for property settlement in this Court.
In April 2011 the father commenced a relationship with Ms D.
On 4 May 2011 the parties attended counselling but no agreement was reached.
On 29 August 2011 the father filed an Amended Response, commencing the parenting proceedings between the parties.
In November 2011 the mother enrolled the children in Nippers on Sunday morning and swimming lessons on Saturday morning. The father ensured the children’s attendance at those activities. This arrangement continued through to 2012.
On 14 November 2011 a memorandum of Family Consultant Ms M was released. The memorandum recorded that the children appeared “emotionally ready” to spend overnight time with the father.
In April 2012 the child V became involved in football club support activities for games on Saturday. The child N continued to play football at that time. The father took the children to those activities.
On 17 July 2012 final consent orders as to property were made. As part of the consent orders, the wife bought out the husband’s interest in the former matrimonial home at Suburb W.
In October 2012 the father and Ms D commenced living in a de facto relationship. The father introduced the children to Ms D at that time.
On 15 January 2013 a family report was issued by Ms M which recommended that the children initially spend Saturday night at the father’s home and that after a period of four months, that be extended to Friday at 6.00 pm until Sunday at 5.00 pm. Overnight time was not implemented in accordance with those recommendations.
On 18 February 2013 the father and Ms D jointly purchased a four bedroom property at Suburb G. That property is over 40 kilometres from the former matrimonial home.
On 11 June 2013 interim consent orders were made granting the husband overnight time with the children each alternate weekend from 8.00 am Saturday to 4.30 pm Sunday.
The mother alleged that the children frequently returned from the father’s house in an exhausted state. She alleged that on 23 June 2013, the child N was slurring his words due to exhaustion. The mother also alleged that the child V often returned from the father’s house crying uncontrollably
Around September 2013, the father took the children on a holiday to Queensland. The mother alleged he failed to provide her with contact details for the trip.
The parties attended mediation with Ms AA on 17 and 25 October 2013.
The parties attended further mediation with Ms AA on 6 November 2013. No agreement was reached.
The children currently attend WH Public School. The children also attend various extra-curricular activities.
The Expert Evidence
The single expert was Ms M. Ms M holds a Bachelor of Social Work degree. She has worked as a social worker at several Sydney teaching hospitals and since 1994 has undertaken the duties of a Family Consultant with the Family Court.
Ms M prepared a report in this matter dated 15 January 2013.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some differences of approach have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.where possible and relevant, consider and make findings about matters set out in s 60CC;
c.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.apply s 65DAA if relevant and assess the proposals in light of that provision;
e.if 65DAA is not relevant, assess the proposals against the best interests criterion;
f.consider and make findings about living arrangements; and
g.make orders.
The Parties’ Proposals
During the hearing the parties made changes to the orders they sought. Some issues were the subject of agreement, some were partly compromised and new issues were added. What is set out below is a record of my notes of the disputes and agreements. It was almost exclusively created in consultation with the parties and I trust that it identifies the matters for determination.
Issues Mother’s proposal Father’s proposal Parental responsibility Joint parental responsibility save for education – mother to decide on schools Equal shared parental responsibility Father’s time School term times
Each alternate weekend, from after school Friday to 4pm Sunday
Each alternate weekend from after school Friday to 6.00 pm Sunday
Recommencing on the second weekend of each new school term6.30pm to 8.30 pm each alternate Wednesday, being the Wednesday of the week that weekend time commences School holidays Second half of the term holidays after terms 1 & 3
All of the holiday after term 2, commencing at 6.00 pm on the first Saturday
Agreed, save that:
Term holidays start 6.00 pm on the middle day or last day of school (July) and end at 6.00 pm on day before school returns
In the Christmas school holidays the father’s time should commence on 14 January
Ending at 10am on the day before children return to school (currently Development Day)
The time in the Christmas January holiday should commence at 6.00 pm on 13 January … and conclude at 12 noon 27 January Special Days 10am to 6.00 pm Christmas Eve in 2013 & each alternate year thereafter;
6.00 pm Christmas Eve to 11.00 am Boxing Day in 2014 and each alternate year thereafter
12 noon Christmas Day to 6 pm Boxing Day in 2013 each alternate year thereafter
6.00 pm Christmas Eve to 12 noon Christmas Day in 2014 each alternate year thereafter
Christmas Day changeovers at the Neutral Bay ferry terminal
Agreed No time at Greek Easter 9.00 am to 4pm Father’s Day 6.00 pm on the day before Father’s Day to 6.00 pm Father’s Day Children’s birthdays
9.00 am to 11.00 amAlthough would support 8.30am to 11.30 am for the child V’s birthday
The child N’s birthday from 6.00 pm leading into father’s … time
The child V’s birthday 9.00 am to 12 noon but not exercised if the mother is away on vacation with the children
Children with mother Mother’s Day
6.00 pm on the day before Mother’s Day to 4.30pm Mother’s Day6.00 pm on the day before Mother’s Day to 6.00 pm Mother’s Day
Mother’s Birthday
9.00 am to 4.30pmThe father opposes that time and seeks no time with the children on his birthday Driving Father should do it all Father drive children on alternate Wednesdays otherwise father collects at the start of each period of his time and mother collects at the end Activities Father required to take children to all sporting, school related activities and friend’s birthday parties during the time the children are with him Noting that he agrees to take the children to after school activities on Friday afternoons; and the child N to competition football games on Saturdays, otherwise there is no obligation on either parent to take the children to any events arranged by the other parent during their time with the children Communication Opposed to Skype on security grounds (not explained or revealed in the evidence) Including Skype No restriction on the parents ringing the children when in the care of the other parent except that the calls are to be limited to twice a week Mother can ring 4pm to 6.00 pm
Father can ring 4pm to 7pmTravel
Written consent for international travel – details of the proposed travel are to be provided to the other parent at least 14 days prior to the travel
7 days before domestic travel, provide details of travel and contact details
Written consent for international travel – 60 days prior notice of the details of the proposed travel
14 days before interstate travel, provide details of travel and contact details
The mother seeks that she hold the children’s passports when they are not required for travel The father seeks that he hold the children’s passports when they are not required for travel Order 9 proposed by father
Agreed save paragraph 9.4 should read:
9.4 Any sporting, school or religious functions or friends’ birthdays which the children are to attend;Order 11 proposed by father Agreed save for paragraph 11.7
Order 15 proposed by father
Agreed save that the obligation should only apply where such travel is 3 or more nights Order 16 proposed by father Opposed.
Note:
·It is agreed that the parents will sign any application for the issue of passports for the children;
·It is agreed that the parents will sign all applications and give such consents as are necessary to place the child N on waiting lists for P School, Suburb Y and A School, Suburb B and both children on a waiting list for L School, Suburb B. It is noted that the father’s agreement is not intended to reflect his consent to the children attending one of those schools but only to place their names on the waiting lists for those schools;
·The parties agree that they can attend sporting, extracurricular and school functions even when the children are otherwise in the care of the other parent;
·Orders in terms of paragraphs 7, 8, 12, 13 & 14 of the father’s case outline are agreed.
Section 60CC Considerations
As with some other provisions of the Act, s 60CC was amended with effect from 7 June 2012. However, the s 60CC amendments only apply to proceedings commenced after that date[1]. As the legislation related to these proceedings, the section specified certain considerations. Those that I deem relevant to the controversy in these proceedings are:
[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”
Primary considerations
(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents‘
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[2] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2] McCall & Clark (2009) FLC 93-405.
The court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the court, not an expert, to determine what constitutes a ‘meaningful relationship’.[3]
[3] Champness & Hanson (2009) FLC 93-407.
Each of the parties wants the children to spend regular, overnight, unsupervised time with the other parent. During her interviews with the family, Ms M observed generally well-functioning, child-parent relationships. The children said they love both parents and during her cross-examination the mother acknowledged that the children love the father “very much so”. There are meaningful relationships between the children and each of their parents. The range of orders proposed by the parties will promote those relationships.
Additional considerations
(3) (a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Ms M interviewed the children prior to the commencement of overnight time with the father. Although he complained about the distance between his parent’s houses, the child N expressed a positive view about spending overnight time with the father. The child V also expressed a positive attitude to overnight time but wanted her parents to decide about the issue.
At nearly nine years of age when interviewed, N spoke positively about each of his parents to Ms M. He described the different things he enjoys doing with each of them. The child V was seven years old when interviewed and made it clear to Ms M that she loves both of her parents. She likes spending time with her father and described with apparent pleasure, some of the things they do together.
The children were more reserved about Ms D, saying she seemed nice. However, the child N said he did not want his father to have a girlfriend.
It is the mother’s case that the children enjoy taking part in nippers. There is no challenge to that opinion. What is missing is any evidence of the view of the children or either of them about whether they would prefer to miss nippers on six occasions a year, being the times during the nipper season that fall on the father’s weekends, or to attend nippers and experience an extra journey to and from Suburb G on those weekends. I hasten to say it is to the credit of the parties that they have not pressed the children about that matter, or indeed about the other issues before the court.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and(ii) other persons (including any grandparent or other relative of the child);
I have referred to Ms M’s observations of the relationships between the children and their parents. Ms M identified a relaxed interaction between the children and the paternal grandmother. The children greeted Ms D politely and with a smile.
During his cross-examination the father volunteered his acknowledgement of the valuable contribution of the mother’s parents to the lives of the children. The facts suggest that the children enjoy loving relationships with their parents and extended family. During her interviews, Ms M noticed some tension between the children, with N overtly seeking to annoy his sister. She observed that V had been very affectionate with and sought a lot of attention from the father. That together with the tension of a changeover between parents may have contributed to N’s behaviour, Ms M opined.
(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This is a vexed topic.
The father asserts that the mother has prioritised the children’s activities over their relationship with him and members of the paternal family. Ms M reported that she thought there was something in his concerns. Ms M was not challenged about that, or indeed about any other opinion expressed in her report. I agree with Ms M.
The mother does not see things that way. It is submitted by her that there have been opportunities for the father to have more time with the children and he has not taken them up. She submitted that evidence could have been given by her of instances where she has taken up the father’s cause with the children. Obviously I cannot comment on evidence not presented.
What I can observe is that it is irresponsible for someone to take away from a child the enjoyment of and entitlement to a loving relationship with each of their parents. That said, the evidence of the parties and the opinion of Ms M suggests that, whatever one parent may have deliberately or inadvertently done, there has been no real damage to the loving relationships between these children and each of their parents.
(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The range of dispute between the parties involves only marginal changes for the children. The mother is concerned that if the father does not support the children’s activities in the Suburb W area, then the children will miss out on important relationships with friends and schoolmates. The main activities that are at risk, from the mother’s point of view, albeit only every second weekend, are swimming lessons and nippers.
The mother foreshadows a potential unfairness to V in that there is no in principle agreement to her engaging in a weekend sport such as the agreement about N’s football. The mother does not propose any particular sport. The first thing to say is that no harm is done under this criterion. If one of the parties considers that V should be involved in a sport that would impinge on the other parent’s time, then that issue should be faced at that time and settled between the parents. Importantly, that issue should be settled before V’s hopes are raised about that sport.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
A major issue for the parties and for the children is that the parents live about 40 kilometres apart. The mother lives in Suburb W, in the Northern Beaches region of Sydney, and the father in Suburb G, to the west of Sydney.
The child N has suffered from car sickness although he told Ms M that was improving. In her affidavit the mother referred to the adverse impact on the children of the long drive between the parties’ homes. From her cross-examination and submissions, I gather that the mother is less worried about the distance the children must travel than she was in the past. The mother gave evidence that the car sickness is ameliorated provided N has regular meals and crackers for the journey.
For the mother’s part, the distance is more of a problem if she is obliged to undertake any of the driving. Under cross-examination by the mother, the father said something like, the children enjoy their time in the car with him. I suspect that is not strictly true. It may be that he is able to turn the experience into one that is less of a chore with music, games of “I spy” and other activities. Nevertheless, he too is concerned about the impact on the children of the travel. Part of his motivation in avoiding some of the Suburb W based activities on his weekends is to reduce the number of trips between Suburb G and Suburb W. The father thinks that it is not fair that he does all of the driving. It is submitted for the father that it would be good for the children to see their mother supporting the father’s time by doing some of the driving. I agree.
(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother expressed to Ms M concerns about the father’s capacity to care for the children. Ms M was told by the mother that the father held a grudge against her and the father thought that was probably right. That appears to relate to the reason for the breakdown of the parents’ marriage, which remained a mystery to the father.
The parents do not allege any substance abuse, family violence or mental health issues, against each other. Ms M does not even describe them as a high conflict parenting couple. They presented to her as being committed and loving parents, albeit that they found it difficult to communicate with each other.
There is reference in the mother’s affidavit to the father not tending to a splinter in a child’s hand and the child V being returned on one occasion without her pants. The mother has complained that the children are often overtired/exhausted when they return to her on Sunday evening. When asked about the bedtime he set for the children when they were with him, the father conceded that they usually went to bed at 9.00 pm or 9.30 pm and that V might not be asleep before 10.00 pm. He said the children told him that their mother had them in bed by 7.00 pm or 7.30 pm. When asked if he could make some changes (put the children to bed earlier) the father seemed not to take the obvious invitation but talked about how much activity he and the children needed to crowd into their limited time together. This is a case where the father is implicitly critical of the mother for booking the children into too many activities each week. It is odd that he is not more sensitive to the children’s need for sleep so that they can better manage their week.
The issue of bedtime is in part what the mother objects to about the father’s application that he spend time with the children on each alternate Wednesday evening. In her mind, 8.30 pm is far too late for them to be returned home.
The father asserts that the mother has prioritised the children’s activities over their relationship with him and members of the paternal family. Ms M thought there was something in his concerns. Ms M was not challenged about that opinion.
The mother’s cross-examination of the father included her pressing him to reveal what organised activities the children would be enrolled in, during the father’s weekend time. Minds differ about these things but there can be benefits to children in unstructured play. To my observation there seems to be an unnecessary intensity in the mother’s scheduling of the weekly commitments of these young children. Again, neither of the parties sought to cross-examine Ms M and so that matter could not be explored with the expert witness.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The children are a boy and girl. They share their parents’ Greek heritage. There is no suggestion that they are not progressing with their cohort of like-aged children. No specific observations were made by the expert about their characteristics.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The parties have allowed their poor communication to interfere with some of their parenting responsibilities. For example, they did not engage with each other and efficiently resolve their disputes and grievances about high school education, about the commencement of overnight time with the father and about the very different parenting rules applied in their respective households. That said, Ms M reported that the parties presented to her as being committed and loving parents, albeit that they found it difficult to communicate with each other.
There is no doubt that the parents want the best for the children and are devoted to them.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is difficult to identify orders that would have this effect and yet, as I am obliged to actively consider, involve both parents in the lives of the children.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:
SECT 61C
Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child‘s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
It is not possible to have equal shared parental responsibility while allowing only one parent to make decisions about a major long term issue.
Here, save for the choice of schools, the mother seeks an order for joint parental responsibility. That is not a defined term[4]. Perhaps the mother intended to specify that each of the parents would separately have parental responsibility. The father seeks equal shared parental responsibility.
[4] Barone & Barone [2012] FamCAFC 108
Discussion
In the context of this case, s 61DA requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them unless there are reasonable grounds to believe that the father or the mother have abused them or engaged in family violence. There are no such allegations here and therefore the presumption does apply.
The evidence reveals that the parents’ problems in relation to choosing high schools for the children amount to them having made no serious attempt to discuss the issue. More than a year ago the mother raised the topic and provided the father with brochures for schools for the child N. The father ignored that communication and the mother did not follow up on it. There is the potential for the issue of the cost of some schools to be a point of contention but the mother told me that, if necessary, she would pay the fees for a parochial school such as A School or P School. Presumably that commitment would remove the cost of private or parochial schooling itself being as something that would prevent the children attending at such a school. The father says that he has an open mind about public versus fee paying schools. I understood him to say that he was the product of state school education, albeit through a selective high school, and does not see the advantage in the children attending a private or parochial school. As I understand his case, he is not aware of any educational deficit that requires the special attention that only a private or parochial school could address. The mother has concerns about aspects of N’s progress. The father said he intends to make some enquiries, including of the relevant teachers and to research the available schools.
The parties’ communication is poor, to the point of being childish at times and one or both of them cannot get past lingering resentment about some issues. However, the parties are apparently intelligent, loving and capable adults and I can see no reason to depart from the intimation in the legislation promoting equal shared parental responsibility. If they embarrass the children or otherwise fail in their joint obligations to make major parenting decisions then in the future they might need to explore the options of having major decisions made by only one of them or by a court.
Conclusion
The presumption that the parents having equal shared parental responsibility would be in the children’s best interests, does apply. The presumption is not rebutted and I will make that order.
Living Arrangements
In that the court will make an order that the parties have equal shared parental responsibility, it is necessary to consider particular living arrangements.
There will be an order for equal shared parental responsibility. Section 65DAA provides:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
1. Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1. The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2. See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1. The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2. See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
83.From the judgment of the High Court in MRR v GR (2010) 240 CLR 461 at [371] the majority said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14. His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour “did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’”.13 However, the court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child’s best interests.14 But those matters could be relevant only to the question posed by para (a) of s 65DAA(1), not the question in para (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
The importance of this provision is the compulsory, sequential consideration of equal time and substantial and significant time. The conditions for those orders to be considered are unremarkable. It is an obvious pre-condition for any parenting order that it be both in the child’s best interests and reasonably practicable.
The legislative intent for this provision is revealed in the Revised Explanatory Memorandum that went before the Senate and which said in part:
Item 31 – After S 65D
…..
195.Subsection 65DAA(1) implements recommendations 4 and 5 of the LACA Committee. It provides a new requirement that the court must consider making an order that a child spend equal time with each parent, if a parenting order provides or is to provide the parents with equal shared parental responsibility for the child. This provision is not a presumption 50:50 of joint custody. That approach was rejected by the FCAC. The court must consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with the parents.
196.Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the child remain the paramount consideration for parenting orders. This is set out in section 60CA by item 9.
197.Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays.
198.Subsection 65DAA(4) makes it clear that the court can have regard to other things when deciding what is substantial and significant time. This will allow the court flexibility in determining for each unique case in the best interests of the child to determine what the significant events are for that child and parent and what would constitute substantial time. For some children it may include things related to religious or cultural events.
199.Section 65DAA(2)-(4) is intended to ensure that the courts consider arrangements that are much more than ‘one weekend a fortnight and half of the holidays’ or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve ‘both’ parents spending both substantial and significant time with their children.
First, I must consider whether the children spending equal time with each of the parents would be in their best interests. It appears from the legislation that this consideration is not limited to the proposals before the court. Here neither parent proposes such an arrangement. Ms M does not recommend equal time.
That said, there is nothing about the parents or the children that would suggest that equal time would not be in the children’s best interests. It is necessary to consider whether such an arrangement would be reasonably practicable.
From s 65DAA above, the relevant matters to be addressed in making a finding about reasonable practicability are:
(a) how far apart the parents live from each other;
The parties live about 40 kilometres apart. The mother lives at Suburb W in the Northern Beaches region and the father at Suburb G to the west of Sydney. The children attend a school at Suburb W. The number of kilometres between the households might not preclude equal time were it not for the fact that it spans much of one of the busiest cities in the world. In my view it would be burdensome for the children and could adversely impact on their parenting if they were to regularly travel across Sydney to go to and from school.
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The mother’s affidavit suggests that she is aggrieved that the father chose to live so far away from Suburb W. My recollection is that I asked her whether that was her main complaint about the distance between the households and that she said it was not. Even then I am left with the residual impression that it is her main complaint. The father gave evidence about his reasons for selecting Suburb G and was not challenged.
The parents both live in properties they own. They are tied to some extent to their places of work which are relatively close to their homes. Neither of them told me that they propose to sell up and move closer to the other. In my view they have little capacity to implement an arrangement for the children spending equal time between the households. The parties have little or no effective communication and somewhat different parenting styles. The regimes in the two households are quite different.
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parties’ communication is poor, in some instances, non-existent and there appear to be some differences in their parenting styles. As the father reasonably said, his limited time with the children until recently has meant that he has necessarily focussed his time on entertaining the children. Hopefully, once a more balanced living arrangement is implemented, he will feel comfortable in imposing greater discipline on bed times so that the children do not have to put up with very different daily routines.
Hope springs eternal. Ms M has opined and I am satisfied that these are good parents. As their children mature and their lives become more complicated, the parents will need to improve their communication.
(d) the impact that an arrangement of that kind would have on the child; and
Travelling 40 kilometres across Sydney for one half of their school time would be unpleasant and would eat into the time available to the children for homework, recreation and organised activities.
Conclusion
It would not be practicable to put in place an arrangement that provides the children with equal time with each of their parents.
Next, I must consider whether the children having substantial and significant time with each of the parents would be in their best interests. Substantial and significant time is time that meets the requirements of s 65DAA(3).
Again, the provision does not seem limited to the parties’ proposals. The mother’s proposal would leave the father virtually disconnected from the school week and could not be described as substantial and significant time. The father’s proposal would provide a greater link with the school week and albeit not much greater than the ‘one weekend a fortnight and half of the holidays’ or an 80:20 arrangement” implicitly criticised in the Explanatory Memorandum quoted above, is at least closer to achieving the father having substantial and significant time with the children.
Although she did not recommend a midweek visit I am not sure that Ms M knew of the father’s willingness to attend in the Suburb W area each second Wednesday afternoon.
In my view it would be in the best interests of the children if they were able to have substantial and significant time with each parent. Having found that substantial and significant time would be in the best interests of the children, I am obliged to consider whether it would be reasonably practicable. Neither party bears the onus of establishing this proposition. It is a positive proposition – that is to say, if I am to impose on this family one of the parties’ proposals for substantial and significant time, I must find that it would be reasonably practicable. It is not entirely clear whether the legislature intended that the entire s 65DAA enquiry be undertaken more broadly than within the range of the parties’ proposals. In my view the question of practicability necessarily focuses on those proposals. Apart from anything else, the evidence is limited to the scope of the proposals.
Again from the judgment of the High Court in MRR v GR above, there is a reference in the passage below to the parties’ “capacity to implement the arrangement in question”:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
I refer in this regard to the above findings in relation to the reasonable practicability of equal time. Relevantly:
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
It is the mother’s case that the father’s proposal for Wednesday afternoon/evening would prevent the children managing their homework and would mean that they would get to bed too late on those nights. Without any direct evidence on the point it seems to be accepted that the mother puts the children to bed two hours earlier than the father. She complains about them being exhausted on return from the father on Sunday nights. As to homework, the issue seems to be that the children have activities on most of the other evenings of the week and Wednesday is the only or a significant opportunity for homework to be completed. As with many other issues in the case, the state of the evidence does not permit precise findings about these issues. There is no evidence about the extent of the homework load likely in the 2014 school year and continuing or the likely amount of time that homework would involve. Stepping back then to general principles, the children are at primary school. The orders I make will commence at the same time as the new school year. The parents are intelligent people and should be able to manage the scheduling of suitable time for necessary homework. As between extra curricular activities and adequate time with the father, the latter must have priority. If something has to give way for homework, it might have to be some other activity rather than movement towards substantial and significant time with the father.
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I refer to my earlier comments. As a class, children will adapt to different regimes but the parties should give consideration to making compromises in their own requirements so that life is easier for the children. In any event, in my view the parents have the capacity to establish a comfortable regime for the children and to manage the necessary communication to address these issues.
(d) the impact that an arrangement of that kind would have on the child; and
The father’s proposal will reduce the travel between households suffered by the children. By not attending nippers or swim classes in the Suburb W area on his weekends, the children will be spared an extra trip between Suburb W and Suburb G. Wednesday evenings with the father will allow him to have greater involvement in the school week and will impose no travel on the children. The agreed commencement of weekend time on Friday night will also provide a connection with the school week and will make the experience with the father more natural and less pressured. It will also provide the mother with much needed respite from her parenting load. It will give her time to catch up on work and household chores, time that she says she needs.
Conclusion
The father’s proposal would represent a move towards substantial and significant time and that arrangement is practical and otherwise in the best interests of the children.
As to the other specific disputes:
Should the father’s time on alternate weekends conclude at 4pm or 6.00 pm Sunday?
I will provide for the time to conclude at 5.00 pm.
Should the father’s time in the July school holidays commence after school on Friday or at 6.00 pm on the first Saturday?
I will provide for the time to commence at 6.00 pm on the first Saturday. The mother will have little time with the children in those holidays and should have the opportunity to settle them into the vacation.
Should the father’s time in the school holidays end at 10.00 am or 6.00 pm on the day before school resumes?
I will provide for the time to conclude at 10.00 am on the day before school resumes. According to the mother that will often be a Development Day. In that way the mother can address any uniform issues etc.
Should the father’s time in the January school holidays commence on 14 January or 6.00 pm on 13 January?
I will provide for the time to commence at 6.00 pm on 13 January. The mother’s proposal would have the father travel to Suburb W and spend time with the children between 9.00 am and 11.00 am on 13 January and then return and collect the children on 14 January. The father’s proposal is better.
How should Christmas be shared?
In their formal documents, each of the parents proposed that the children travel between the households on Christmas Day. Perhaps incited by a comment I made, the mother changed her proposal so that there need be no travel on Christmas Day. Given that they both initially wanted that arrangement I am now inclined to order it. It speaks of a tradition whereby it is more important to have the children in both households on Christmas Day than it is to avoid an unpleasant journey across Sydney.
The father’s proposal achieves the apparent intention and, by specifying a handover on Christmas Day at the Neutral Bay ferry terminal, the driving burden is reduced for the mother. I note that I was told that the handover point is chosen for being a pleasant venue, not with any intention of ferry travel.
Where Father’s Day falls on the mother’s weekend, should the children spend time with the father between 9.00 am and 4pm or as the father proposes from 6.00 pm the night before to 6.00 pm Father’s day.
I will adopt the father’s proposal as it spreads the two trips over a greater period. I will make the reciprocal order for Mother’s Day.
There was something of a moving feast with the mother’s proposals for the child V’s birthday. I understand the final proposals to be - should the father have the children from 8.30 am to 11.30 am on V’s birthday or from 9.00 am to 12 noon. The father proposes and the mother did not dispute, that his time with the children on that day would be suspended if the mother was otherwise away on holidays with the children.
I understand the mother’s case to rely on an “accepted” commencement time of children’s birthday parties. There is no evidence about this issue. The later time is more likely to be usable for the father and children. I will provide for 9.00 am to 12 noon.
Should the children have time with their mother on her birthday?
The birthday is in mid-June. The chances are that the children will be with the mother on that day in any event. I will make no special provision for the mother’s birthday.
Should the father undertake all of the driving or should the mother perform half or some part of the driving?
Unfortunately there was no evidence in support of the mother’s arguments in this regard. It would be her case that there are health considerations arising from a wrist or arm condition dating back many years which limit her ability to drive. The mother sought to tender medical notes from 2007 and 2010 but they did not provide any assistance with her current health, and were rejected. The other argument made by the mother was to the effect that the time that would be consumed by her driving the children from the father’s home would make unacceptable inroads into the time she has for the employment she relies on to support the children and the household chores. Again, there is no detailed evidence about these claims. I understand the mother’s evidence to be that her paid employment demands about 50 hours a week of her time. Two days a week she works from home. The calls from clients are during the working week and sometimes on Saturdays. She can catch up with some work, out of hours. The mother has some assistance with the children from her mother. The fact is that the mother undertakes and will continue to undertake more of the day to day parenting of the children.
All other things being equal, the parents should share in the travel burden. There is an irony in the mother refusing to help with the driving and her insisting that the father undertake an additional journey between Suburb W and Suburb G, at least on those of his weekends that coincide with nippers and weekend swimming. I will provide for the mother to collect the children from the father’s home at the conclusion of his weekend time and at the end of his school holiday time. However, I will specify that the father will undertake both journeys on the first of his weekends in each school term. That recognises the greater parenting load borne by the mother.
Should the father’s alternate weekends start afresh in each school term (father’s proposal) or continue as if the school holidays had not intervened (mother’s proposal)?
Over the long term the father’s proposal might result in the father having slightly less time with the children but it has less risk of being misunderstood. The parties’ communication is poor. I will provide for the father’s weekends to resume on the weekend at the end of the second week of each school term.
Should the father be required to take the children to all sporting and school related activities and all friends’ birthday parties during the time the children are with him?
There is an agreement about some current activities. If I understand the father’s position correctly, he has agreed to take the children to after school activities on his Friday evenings and to take the child N to competition games of football on Saturdays. However, he seeks that any such arrangements be renegotiated each year. Otherwise, apart from any other agreements made between the parents, the father seeks that neither parent be obliged to facilitate the attendance of the children at events during their time with the children.
The father’s position better accords with the philosophy of shared parental responsibility. As a general proposition, the parents should consult and agree on activities that impinge on each other’s time. As a general proposition, the primary relationships are those between parent and child, rather than those between child and school or sporting mate.
Should Skype be included in the available media for communication between the children and their father.
This is a one way issue because the mother is opposed to Skype communication and therefore does not want to communicate with the children through that mechanism. As with many other issues in her case, there is no evidence that supports her contention that the medium is unsafe and could lead the children to be exposed to paedophiles. This is a matter about which the mother feels strongly. I will respect her wish. The parties’ arrangement leaves the children in the mother’s care for most of the time and unsupported and, odd as it sounds, she is entitled to a view about this issue.
Should the parents be able to ring the children at the other household at any reasonable time but only twice a week (mother’s proposal) or in accordance with the father’s proposal, between 4.00 pm and 6.00 pm (if the mother is calling) or 4.00 pm and 7.00 pm (if the father is calling)?
There is little if any evidence about this issue. The mother gave evidence about stalking behaviour by the father. I assume she is worried about the calls becoming a burden. It is impossible to order parties to use common sense. Of the proposals, the father’s seems sensible, save for the unexplained difference in times. I will make an order in terms of his proposal but will specify 4pm to 6.00 pm. Of course, as with all these matters, the parties are free (indeed obliged) to negotiate and agree on a more sensible or practical arrangement if the orders do not suit their needs or those of the children in a particular instance or generally.
Should the father’s proposals for travel be implemented or those of the mother?
The agreed requirement for consent for international travel will overcome all other issues but I would have thought that where practicable, greater notice would be better than 14 days. I will adopt the father’s proposals.
Which parent should generally hold the children’s passports?
I will provide for the mother to hold the passports. If she can be trusted with two beautiful children for most of the time then the passports will probably be safe with her.
Should the notification given by one parent to the father at 9.4 of his proposed orders read as he has it or be styled “any sporting, school or religious function or friends’ birthdays”?
I will use the mother’s wording. Obviously the question of whether a parent is obliged to facilitate attendance will be determined by the other terms of these orders or the parties’ agreement.
Should the parties be required to notify each other if they will not be personally available to care for the children overnight for one or more nights (order 15 proposed by the father) or only for three or more nights?
Three or more nights strikes the right balance.
Should the parties required to give each other the first opportunity to mind the children if they will not be personally available to care for the children overnight for one or more nights (order 16 proposed by the father)?
There is some logic to this proposal but I do not see the benefit in the event that the occasion involves only one night. The order is opposed simpliciter and there were no submissions about a different trigger for the obligation. I will not make the proposed order.
Conclusion
The children are safe and well and have good relationships with their parents who are competent and loving.
The parents will have equal shared parental responsibility. The children will have their alternate weekend time with the father commence after school on Friday and will see him every second Wednesday after school.
Leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which the parties may agree, in relation to the wording (rather than the import) of the orders.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 December 2013.
Associate:
Date: 18 December 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Standing
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Jurisdiction
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