R and C - [2006] FMCAfam 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & C

[2006] FMCAfam 412

FAMILY LAW – Children – interim arrangements whereby children aged 16 and 11 spend time with the father – mother proposes alternate weekends and time on Wednesday evening – father seeks longer periods – equal shared parental responsibility – substantial and significant time.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA

Applicant:

V R

Respondent:

R C

File Number:

DNM183 of 2006

Judgment of:

Brown FM

Hearing date:

1 August 2006

Delivered at:

Darwin

Delivered on:

1 August 2006

REPRESENTATION

Counsel for the Applicant:

Ms Terry

Solicitors for the Applicant:

Janet Terry Barrister & Solicitor

Counsel for the Respondent:

Ms Sivyer

Solicitors for the Respondent:

Sivyer and Associates

ORDERS

That pursuant to s.61DA of the Family Law Act 1975 the parties have equal shared parental responsibility for their children S R born 25 April 1990 and S R born 11 February 1995.
That the children live with the wife.
That the child S spend time and communicate with the husband on terms to be agreed between the parties.
That the child S spend time and communicate with the husband as follows:
(a)During school terms on each Wednesday night commencing
2 August 2006 from 6:00pm until school commences the following Thursday;
(b)During school terms on each alternate weekend commencing
11 August 2006 from 6:00pm Friday until the commencement of school the following Monday;
(c)From 6:00pm Friday 29 September 2006 until 5:00pm Sunday
8 October 2006;
Order 4(b) shall recommence on the second weekend after school resumes in October 2006.
That the wife be at liberty to travel with the children outside of the Commonwealth of Australia to India in the December/January school holiday of 2006/2007 subject to the following conditions:
(a)The wife provide the husband with an itinerary of the children’s travel to India including flight numbers and times of departure and arrival to the husband 28 days prior to the date of her and the children’s departure for India and provide the husband with details of telephone numbers by which the husband may communicate with the children whilst in India;
(b)The wife ensures the children spend at least 7 continuous days during the period the children are in India in the care of their paternal family in Bangalore;
That the order 4(b) shall recommence on the first weekend after school resumes in 2007.
That in the event the child S is not with the father on his (S’s) birthday the father shall spend time with S between midday and 6:00pm his birthday on 11 February 2007.
That each party have the opportunity to communicate liberally with the children by telephone when the children are with the other parent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM183 of 2006

V R

Applicant

And

R C

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. Errors in expression have been corrected and an attempt has been made to render the orally delivered reasons amendable to reading
This afternoon I have to deal with competing applications to do with interim arrangements for the care of two children, S R, who was born on 25 April 1990, and more importantly, S R, who was born on 11 February 1995. The parties to the proceedings are the children’s parents, their mother, V R, and their father, R C.
Having provided the ages of the two children concerned, it is clear that different considerations apply to them. S is 16 years of age, he will be 17 in April next year. Currently he is in Year 11 at school. He is a child who is reaching the stage in life when he wants to make decisions about how he spends his time. He is a teenager and a mature and well-adjusted one at that. S is obviously younger and so there are some tensions between what are the appropriate arrangements for each of the two children concerned.
It is the husband’s position that it is not appropriate for the court to make orders about S, other than in general terms. He proposes S should continue to live with his mother and spend time and communicate with him at times to be agreed between the parties.
However, in regards to S, it is the husband’s position that he should continue to live predominantly with his mother and spend time with him on alternate weekends from about 6.00pm or 6.30pm on Fridays until school recommences the following Monday during school terms and in addition S should spend overnight with him on Wednesday of each week, again from about 6.00pm or 6.30pm on Wednesday until school commences the following Thursday. He would also wish to be able to spend time with S during school holidays.
The parties have reached an agreement in regards to the long school holiday this year at Christmas time, and it has been agreed that the wife will travel with both children to India, provided certain conditions are met.
It is the wife’s position that the orders in respect of the older child are acceptable, but she, at this stage, believes the orders the father seeks in regards to Shishir are inappropriate. She proposes that the husband spend time with S on Wednesday evenings, essentially have a meal with him for a few hours on Wednesday and that there should be other times at the weekend, primarily from Friday evening until Sunday afternoon, that S spends with his father, but only in alternate weekends.
So, the difference between the parties is really about Wednesday overnight and also whether the alternate weekends should be extended, as the husband seeks.
Having outlined that background, it is necessary for me to outline, as best I can, the matters that bring the parties to this point. The parties are both from India, particularly Bangalore. They married on 30 April 1989. There is some dispute between them as to precisely when they separated. It is the wife’s position that the parties separated, in the family home, in May of 2005. The husband puts the date of final separation as being 5 November 2005.
I suspect there is not a great deal of difference between the parties’ positions really, in the sense that the wife indicates the relationship was certainly very problematic and difficult from May of 2005 onwards. No doubt there were a lot of pressures on the family and the parties at that time, including their responsibilities as parents, financial pressures, and the fact that one of them did not have other accommodation to go to. Anyway, things reached a point of crisis on 5 November 2005. The police were involved and ultimately Mr C left the parties’ home.
It is not possible, nor is it, I think, necessary for me to make findings about the circumstances of that separation other than I suspect it was very painful. It was very difficult, and the emotions that it precipitated are still fresh and raw for both of the parties. I also suspect that both children were probably aware of the trauma of that separation, and they are still coming to terms with it.
The marriage between the parties obviously was a long one, and there are complex issues to do with the parties’ finances, which have to be sorted out. Again those decisions can only be painful and difficult ones for the parties themselves, as scarce marital resources will have to be divided between the parties after their long marriage.
It seems to be the case that, after the parties separated, they were anxious to avoid instituting proceedings to resolve issues to do with property and arrangements for the care of their children. I suspect both hoped that things would settle down and they would be able to work things out between themselves in due course. That has not proved to be the case, and again I am not overly surprised at that, because although it is about six months ago, the emotional consequences of the parties’ separation still, I think, continue to reverberate for each of them. This is to be expected, given the length of the marriage between them.
At any rate, the wife commenced some proceedings in this court on 8 May 2006. At that stage she only sought orders in respect of division of the parties’ property. The husband responded to the wife’s application on 29 May 2006. At that stage, on both an interim and final basis, he sought orders not only in respect of property issues but also in respect of arrangements for the care of S and S.
The matter came before me for the first time in a duty list on 13 June 2006. At that stage I was able to appoint a date for the parties to attend a conciliation conference in respect of their property matters. The parties had some discussions via their solicitors, regarding arrangements for the children. Some agreement was reached, perhaps on a tentative basis, I am not 100% sure about that. At any event, the matter was adjourned to the 26 July. The order I made was that it be fixed for interim hearing or possible consent orders. I think I was told, although I may be mistaken, that the parties were hopeful of reaching their own agreement in respect of arrangements for the care of the two children. That has not proved to be possible.
On 26 July the matter could not be dealt with. There were some delays in the filing of material and I had another hearing, which I had to deal with. The wife, in particular had not filed any material to do with the children’s issues. They were deadlocked about the appropriate arrangements for S’s care.
The parties are both hard-working professional people. The husband is a public servant. I believe the wife is a university lecturer. As I have already remarked, I am sure that they both honestly and genuinely believe that the orders which they each seek are the ones most calculated to serve the interests of the children concerned.
I do not enjoy making orders about other people’s children. I only make orders when there is a dispute between parents which must be resolved. The parties here are deadlocked at this stage. But I do not think that I am better placed than either of the parties to make these important decisions about S and S. I do so as a last resort. I hope in future the parties will be able to salvage some facility to make joint decisions about their children in future. That is by far the better way for the children concerned.
It is the wife’s position that there should be a fluid arrangement in respect of the care of the children, and in support of her position she raises issues to do with the circumstances surrounding the parties’ separation. It is her position that the husband was distraught at the end of the parties’ relationship and was not coping well. In that state of mind, she believes the husband was emotionally destabilising the two children concerned and causing them distress.
It is the husband’s position that the mother overstates these concerns, particularly the involvement of the two children concerned. He asserts the wife exaggerates what she perceives to have been his emotional instability at the time. In addition the wife alleges that the husband has had to change his accommodation since November of 2005 and that this of itself is indicative of a lack of stability in his life.
It seems to be the case that the parties have earnestly tried to resolve their differences between them regarding arrangements for the children through mediation, but that this has not been successful. The parties’ positions, I think, can be summarised generally by what they say in their affidavits. The husband says this in his most recent affidavit.
“I would like S to stay overnight on a Wednesday night and have alternate weekend contact until Monday morning. It will allow me the opportunity to have some input into S’s schoolwork and just give us the opportunity to spend time with each other. Other than attending at the school and liaising with S’s teachers, I have no way of staying in touch with his progress. During the marriage I usually helped the children with their sports activities and homework in the evening. The respondent sometimes taught late classes at the University, and on other occasions didn’t come home until later in the evenings because she had meetings. I finished work at around 5 pm and usually cooked the evening meal and did homework with the boys.”[1]
[1] See husband’s affidavit filed 27 July 2006 at paragraph 10
The wife does not accept this. She disputes the involvement of the husband in the boys’ homework, and says they mainly relied on her for scholastic guidance and support, although the wife does concede, I think, that the husband has been very involved in the boys’ cricketing activities. It seems that the boys are both very good cricketers. They are captains of their respective teams, I think.
But overall, it is the mother’s position that what the father proposes is far too disruptive for S. In her affidavit she says as follows:
“I am concerned that this will be far too disruptive for S. It would lead to a pattern of S every fortnight spending (starting with a Wednesday night) a night with his father, a night at home, three nights with his father, 2 nights at home, a night with his father and then 6 nights at home. There are too many changeovers. R does not pick S up until R finishes work, and S would have to continually make sure that he had all his clothes and books and a uniform for the next school day as he travelled from one house to the other.”[2]
[2] See wife’s affidavit filed 31 July 2006 at paragraph 15
In addition, the wife points to the difficulties which will ensue because the husband will be at work when S finishes school. There will be all the hassle and inconvenience of school books and uniforms and all the paraphernalia that children need for school and home, travelling regularly between the two households. As is often the case in matters such as this one, it is her position that S will benefit from having a sense that he has one home and is not caught pillar and post between the two homes of the parties.
As I said at the outset, different considerations apply to S and it is the wife’s position that S perceives it is unfair that S can dictate when he goes and spends time with his dad, and he cannot. She points to the fact that the two boys have a very strong bond with each other, and do a lot of things together.
Having made that summary, it seems to me that both parties’ positions have validity and I can understand why each has adopted the particular position he or she has. The wife putting an emphasis on stability: - not unduly disrupting the children after the trauma of their parents separating; not burdening S, in particular, with the perplexities of many changeovers.
From the husband’s point of view, I can understand why he would want to be involved as closely as possible with his sons, and have a sense that he is a presence, that is Mr C is a presence in both his children’s lives and has not been relegated to a subsidiary position only spending time with them on weekends.
These are interim proceedings. They have been conducted on the basis of me reading the parties’ affidavits only. I have not seen either of the parties in the witness box and, as such, I have not had the opportunity to appraise their credibility or their personalities generally, or form a concluded view of what sort of people they are.
There are a number of disputes between the parties. Some of those are significant disputes, particularly, I think, the degree of emotional vulnerability of the children, specifically in terms of their parent’s separation and the impact on them of the father’s behaviour after and during the parties’ separation. Well, I am not in a position to resolve those issues today. I cannot do that on an interim basis, because there has not been any cross-examination of the parties. However, a decision must be made nonetheless between the parties’ competing applications. What I have to do is fashion some orders that, if necessary, will stand until the final hearing of the matter, when a thorough examination of all the relevant issues can take place.
I am very conscious of the provisions of Division 12A of the Family Law Act 1975. There are the provisions which deal with what is termed “less adversarial process”. The Federal Government is anxious that parents be dissuaded from litigating about arrangements for their children, it being generally recognised that litigation encourages parental conflict rather than the opposite. I have encouraged the parties to seek some middle ground between them.
Anyway, by their nature, interim procedures are somewhat ad hoc, because they cannot definitively resolve issues in dispute between parties at the interim stage. The law I have to apply to this matter is set out in Part VII of the Family Law Act 1975. That is the part of the Family Law Act which deals with children. The Act was amended in a very significant way by the Family Law Shared Parental Responsibility Act of 2006. That Act came into force on 1 July 2006. So all who are involved in the family law system are coming to terms with the application of the new Act and what it means in practice.
The Federal Attorney-General has said he wants to bring about a fundamental change in the culture of litigation regarding children. He also has indicated the government’s wish to change the emphasis in litigation. At any event the law is now somewhat complex. It applies no less to interim proceedings than to final proceedings. It is necessary for me to outline the law as best I can, and then apply it to the circumstances of the parties at this point.
The objects of Part VII of the Family Law Act 1975 is set out in s.60B. Those objects include firstly, 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 children concerned. So one of the objects of the Act is to ensure that parents, both parents, whether they are separated or otherwise, have a meaningful involvement with their children to the maximum extent possible, consistent with the best interests of the children concerned. That object is part of the essential lattice, or framework of the new legislation.
Underlying that object and others which it is unnecessary for me to outline at this stage, are a number of principles. These principles include that children have a right to know and be cared for by both their parents; and the children have a right to spend time on a regular basis, and communicate on a regular basis with both their parents. Again, of course, those principles are subject to the proviso that whatever orders are made must serve the child’s best interests. That principle, which is described by lawyers as being “the paramountcy principle”, is re-capitulated in the amending legislation at s.60CA. Whatever orders I make today, I must be satisfied that they are in the best interests of the child or children concerned.
Both parties today ask me to make a parenting order. A parenting order is defined in s.64B of the Family Law Act. A parenting order deals with where a child is to live, the time a child is to spend with another person, or otherwise allocates parental responsibility in respect of a child. So, obviously both parties wish me to make a parenting order.
The legislature has inserted a presumption that I am required to consider when I make any parenting order. The presumption is created by s.61DA. When the court makes a parenting order, the court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child.
It seems to be common ground between the parties that they accept that this presumption is enlivened in these proceedings, that it is not rebutted by any of the considerations contained in sub-s.(2) of s.61DA. So, I am to make an order that the parties have equal shared parental responsibility for both S and S.

What follows from that presumption are a number of considerations that arise under s.65DAA. Those considerations deal with the child concerned spending what is described as either equal time or substantial and significant time with both of his or her parents.
As I say, regardless of that presumption, whatever order I make today, I have to be satisfied is in both children's best interests. Pursuant to s.60CC the court is provided with a list of matters, which it is required to take into account in determining what is in a child’s best interests. There are two tiers of considerations.
Pursuant to sub-s.(2), there are what are described as primary considerations. The two primary considerations are firstly, I have to consider the benefit to the child or children concerned of having a meaningful relationship with both of his or her parents, and secondly, I have to consider the need to protect the child or children concerned from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
It does not seem to be the case in this matter that there are any allegations that the children concerned have been exposed to abuse, neglect or family violence. That being the case, it seems to be that the other primary consideration, that is, the benefit of the children having a meaningful relationship with both their parents has particular significance in this matter.
There are a number of additional considerations, set out in s.60CC(3) which are relevant to the children’s best interests. They include the child’s views; the nature of the relationship the child has with each of his or her parents; the willingness and ability of the child’s parents to facilitate a relationship with the other parent concerned; the consequences of any change in the child’s circumstances; the practical considerations regarding arrangements for the child to spend time with the other parent; and the insight and capacity that each of the parties has to the responsibilities of being a parent. There are other matters to do with violence, which do to seem to be particularly germane in this case. I bear all those matters in mind.
The emphasis in the legislation, therefore, is on children having a meaningful or significant relationship with both their parents, in the aftermath of parental separation. Inevitably, where there is conflict between parents, there will be disputes as to what is likely to be a meaningful relationship for the children concerned.
The legislature has attempted, through the provisions of s.65DAA to confine to some extent the discretion of the court in regards to what is a meaningful or other relationship between parents and their children. It is, I think, inevitable that the court is required to look at the time and the quality of the time parents spend with their children, in order to determine whether these parental relationships can reach their potential to be meaningful.
This is not a case where the husband seeks that the children spend equal time with both their parents, and I think that is to his credit. I think I would have had grave reservations about whether such an arrangement would have been workable. He does, however, I think, wish to spend substantial and significant time with S.
Substantial and significant time is defined in sub-s.(3) of s.65DAA and again the legislature has gone to some pains to define the expression. It includes both days that fall on weekends and holidays and days that do not fall on weekends or holidays. That drafting has been criticised as being unduly clumsy. Obviously it means both weekends and weekdays.
The section goes on to indicate that time a child spends with a parent will only be regarded as being substantial and significant if firstly it allows the parent concerned to be involved in the child’s daily routine; and secondly allows the parent to be involved in occasions and events that are of either particular significance to the child or the parent. However sub-s.(4) of s.65DAA allows the court to consider other matters to determine whether the time a child spends with a parent is substantial and significant.
It is the wife’s position that S, spending all day Saturday, a large proportion of Sunday each fortnight, as well as Friday evening, and a Wednesday meal every fortnight, is substantial and significant time. She asserts it is both weekends and weekdays. It seems to be the husband’s position that this time is not substantial and significant, as it artificially curtails the time that he can spend with S and excludes him from being involved in the child’s daily routine.
That is not an end to the complexity provided by the section. Obviously in determining whether the child or children concerned spends either equal or substantial time with a parent, the court has to consider whether such an arrangement is workable or practical. Obviously if one party lives in Darwin say, and the other lives in Katherine, it is very difficult to see that there can be equal time.
So, the court pursuant to sub-s.(5) of s.65DAA is required to consider a number of matters which fall under the heading of “reasonable practicality”. These include the following:- how far apart the parties live; the parties’ current and future capacity to implement such an arrangement and to communicate and resolve any difficulties that may later arise from it; the impact such an arrangement would have on the child; and any other relevant matter.
It is, I think, the wife’s position that the parties are not talking well with one another at the moment and the impact on S of the arrangement which the father wants is likely to be detrimental. However, there is a certain tension between that position, I think, and her desire to have an ad hoc or fluid arrangement regarding the time the child spends with the husband. It is, I think, the husband’s position that he feels that the arrangement has to be fixed by the court, otherwise the so called fluid arrangements have the potential to be arbitrarily changed, as he perceives it, or, perhaps more unfortunately, that the children themselves become the hinge on which disputes between their parents turn.
I am obliged to apply the legislation to the interim proceedings no less than to final proceedings. I am obliged to bear in mind the objects of the Act. I have already read out one of those objects, which appears to me to be particularly germane, or relevant to these matters. I am conscious that it is difficult in this interim hearing for me to know with any certainty what the practicalities of future arrangements will be.
It is, perhaps, something of a self fulfilling prophecy when the wife says the parties cannot communicate with one another and cannot resolve difficulties arising between them. Obviously there is the potential for lots of difficulties to arise here. Children notoriously forget their schoolbooks. Children notoriously leave their homework behind and have to go and collect it. They have social or sporting commitments which impinge. Those are the sorts of arguments, which the residence-providing parent invariably runs up. The other parent usually says, “Well, it’s going to be difficult, it’s going to be complex, because the child has parents who live in two separate households but we will get by and it is important that we try.”
In my view children can cope with most arrangements, if they have a sense that their parents support those arrangements and want them to work. There are drawbacks in the wife’s position, I think, in terms of the Wednesday period. It is a fairly short period and I am concerned that that does not meet the definition of “substantial and significant” provided by s.65DAA(3).
In the legislation the words “substantial and significant time” appear in italics. No doubt the drafter wished to emphasise the words, and emphasise what they meant - substantial and significant. They are ordinary English words. Substantial means of real importance. Significant means important or meaningful. I am not convinced, at the present time, that the wife’s proposal meets the requirement that, if there is equal shared parental responsibility of S, the husband will be spending substantial and significant time with him, as the presumption of s.65DAA(1) requires.
The intention of the legislation seems to be that both parents and the child in particular, have a sense of mutual involvement in the other’s life. That the child in particular has a sense that both his or her parents are involved in the fabric or the weft and weave of the child’s everyday life. In the past, what were described as contact or access parents felt they were excluded from making decisions about routine matters, felt excluded from involvement in the child’s day to day school activities, felt excluded from mundane or day to day activities such as cutting lunches, putting children to bed, things of that nature, and as a result their relationship with their particular children lacked warmth or immediacy. Essentially they felt confined to being in a subsidiary role as a contact or access parent, only involved in recreational activities, rather than the residence providing parent who was the “real” parent.
The government, after a lengthy inquiry, has responded to those concerns with this complicated legislation, which the superior courts have as not yet defined or interpreted in any significant way. However, as I say, substantial and significant time have their ordinary meaning and I have to look at what is meant by daily routine, and at this point I am not persuaded that daily routine includes just an evening meal, once per week and alternate weekends.
As I say, inevitably the arrangements for the parenting of S will be complicated. They are complicated by the different considerations which apply to S. They are complicated by the rawness of the parties’ separation. Ms Terry, I think, puts a great deal of weight on the difficulties the parties have at the moment in communicating with one another. And I suppose it speaks for itself that after, perhaps, some direction from me about the desirability of the parties reaching some consensus about arrangements for the care of their children last week, they come back before me today and the dispute between them is still unresolved. I appreciate there is some tension about making orders that through judicial fiat encourage parties to have a co-operative attitude with one another, it being the case that if the parties were able to have such a co-operative relationship, they would not require orders to compel them to that end.
The fact remains the parties live close to one another in suburban Darwin. They have been able to reach arrangements with one another, I suspect, when it’s been convenient to them, and in that regard it seems to be common ground that the older boy, S, spent an extended period of time with his father during a cricket tournament in the mid-year school holidays when another child was billeted on him. In the past when the wife has had a commitment in Sydney, both children, I think, have stayed with the husband. The husband’s accommodation, perhaps, is not as comfortable as the former matrimonial home, but that, of itself, I do not think is reason for not making the orders the husband seeks.
At this point I suspect that the parties have not closely thought about a lot of things. These orders will be interim orders, but I am going to deal with matters up until the long Christmas school holiday this year. I am not going to deal with the April school holiday for next year at this stage. This year, S’s birthday will be on the Sunday, whether that is going to fall on the husband’s weekend, I do not know, because I have not done the necessary calculations. S is in the unusual position that his birthday is always a public holiday, at least in this country and I’m not going to deal with that issue today.
The parties have a conciliation conference later in August, and I will know then whether they have resolved their property issues, and whether or not those issues need a final hearing date, which I anticipate will be in the early part of the New Year. The parties are coming back after the conciliation conference on 29 August to let me know what has occurred with that, so I’m going to make orders that will deal with arrangements for the care of the two children concerned up until the early part of next year.
As I said at the outset both parties’ positions have validity, and the answer to the problem, I suppose, is that each make some concession to the other’s point of view, but, at this stage, for natural and understandable reasons, the parties view the matter from their own particular perspective. Things may settle down, and the children, particularly S, may be instrumental in perhaps fashioning an arrangement which they are both happy and content with. I don’t know.
But at this stage I propose making these orders at this stage. I should say I have formed the view that S should spend the whole of the forthcoming September/October school holidays in the company of the husband, and I reach that view because both children will be going to India at Christmas time with the wife, and I think there is a certain equity in that approach. As I said earlier, I think it is a good thing that the parties have resolved the December/January holiday. The recent imbroglio about the children’s passports, I think, shows that S in particular wants that issue sorted out.
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 sixty-four (64) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C White

Date: 10 August 2006