R and O
[2007] FMCAfam 473
•12 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & O | [2007] FMCAfam 473 |
| FAMILY LAW – Interim living arrangements for children – equal shared parental responsibility – equal time or substantial and significant time with each parent – best interests of the children – reasonably practicable – relevant section 60CC factors – frequency of changeovers – splitting of siblings. |
| Family Law Act 1975, ss.60CC, 65DAA |
| Goode v Goode (2006) 36 FAM LR 422 Goode & Goode (No. 2) [2007] FamCA 315 KML & RAE [2006] FMCAfam 528 |
| Applicant: | N P R |
| Respondent: | E O |
| File number: | CAC 431 of 2007 |
| Judgment of: | Mowbray FM |
| Hearing date: | 12 June 2007 |
| Delivered at: | Canberra |
| Delivered on: | 12 June 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Solicitors for the Respondent: | Lessli Strong & Associates |
ORDERS
That until further order:
That the children N born in 2001 and A born in 2005, (‘the children’) live with the father as follows:
(a)During week one and each alternate week thereafter, from Monday 9:00am to Wednesday 9:00am, nights inclusive, and Friday 9:00am to Monday 9:00am; and
(b)During week two and each alternate week thereafter, from 9:00am Wednesday to 9:00am Friday.
That the children live with the mother as follows:
(a)Week one and each alternate week thereafter, from 9:00am Wednesday to 9:00am Friday; and
(b)Week two and each alternate week thereafter, from Monday 9:00am to Wednesday 9:00am, and Friday 9:00am to Monday 9:00am.
That each of the parties shall take all reasonable steps to facilitate regular communication between the children and the parent with whom they do not reside, and for such purposes the parent with whom the children are not residing shall initiate the call to the parent with whom the children reside at 7:00pm each Tuesday, Thursday, Friday and Sunday.
That for the purposes of changeover each of the parents will collect or return the children to school and/or preschool, except during school holiday periods and public holidays or where the children are otherwise not at school or pre-school, at which time the parent who is to spend time with the children shall collect the children from the home of the parent with whom they are residing, unless otherwise agreed.
That the parties do all things necessary to enrol in and attend at the ARCK Parenting Orders Program run by Marymead at such times as recommended by the coordinators of that program.
The matter is adjourned to 5 December 2007 at 11:00am.
Liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 431 of 2007
| N P R |
Applicant
And
| E O |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment delivered on 12 June 2007 which has been revised and edited from the transcript.
The matter concerns interim living arrangements for the two children, N, who was born in 2001 and therefore is about six and a third years old, and A, who was born in 2005 and is two years old.
The parents were married in January 1998. Final separation occurred on 28 July 2006. Both parents are in full-time employment. Interim arrangements have been in place since November 2006. Under these arrangements, the time N and A spend with each parent differs.
Competing proposals
The mother's proposal for interim living arrangements is set out in the document Orders Proposed by Mother filed on 6 June 2007. According to this proposal the time N and A would spend with each parent also differs, as it gives N additional time with her father. However there is a significant amount of common time.
The father's proposal, set out in the document Minute of Proposed Order, filed in Court on 6 June 2007, essentially seeks an equal shared care arrangement. Both children would move from one parent to the other together. However this would not occur in weekly blocks, an arrangement which might be more appropriate for older children. Instead it would take place a number of times over a fortnightly period. In the father's proposal, the maximum that either child would spend away from a parent is three nights.
Equal time or substantial and significant time with each parent
The orders that were made by this Court in August last year provide for both parents to have equal shared parental responsibility for the two children. As a consequence of those orders, under s.65DAA of the Family Law Act 1975 the Court is required to consider when making parenting orders, including interim parenting orders, whether the children should spend equal time or substantial and significant time with each parent. The essential test is what is in the best interests of the children and whether the children spending equal time or substantial and significant time is reasonably practicable.
As in many or most interim parenting matters, there is much in the affidavits that is in contention and it is not possible for me to make final findings of fact in relation to those matters.
Reasonable practicability
I turn first to the question whether it is reasonably practicable for the children to spend equal or substantial and significant time with the parents. Section 65DAA(5) of the Act sets out factors that the Court must have regard to in determining reasonable practicability. I do not think that it is suggested that there are any issues of practicability which would prevent the children spending either equal or substantial and significant time with both parents. This is so given the living arrangements and the proximity to school for N and the arrangements for A at childcare, which I understand is at the University.
Relevant factors under Section 60CC
There being no issues regarding practicability, it is necessary to consider the relevant factors in s.60CC of the Act on which I can make any findings, having regard also to the report of Mr Kevin Percival.
Primary considerations: The primary considerations under s.60CC(2) are the benefit to the children of having a meaningful relationship with both of the children's parents and the need to protect the children from physical or psychological harm.
There is nothing in the material before me that suggests that there is any question of physical or psychological harm for the children under either of the arrangements that are proposed by the parents.
Although obviously the father's proposal involves greater time with him, I am not persuaded that either of the arrangements would deny the children of the benefit of having a meaningful relationship with one or other parent.
Additional considerations: The children are too young to express considered views (s.60CC(3)(a)). I do note however that some of the concerns that the mother has raised in her affidavit about N's apprehensions do not find any support in the report of Mr Percival.
A further consideration which I must take into account is whether each of the children has a good relationship with their parents (s.60CC(3)(b)). I do not think that there is any question that both the children have good relationships with their parents.
One consideration which has been raised by the mother is the likely effect of any changes in the child's circumstances (s.60CC(3)(d)). She has mentioned in her affidavit her concerns about some apprehension expressed by N when she returns from spending time with her father. She has mentioned that N has expressed the wish to spend more time with her. I note in the written submissions from the mother that since March some of those apprehensions have settled down. In paragraph 6 of those submissions she says that the level of N's distress ‘has again decreased and she seems to have settled down again since March.’
A further consideration is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s.60CC(3)(c)). I note that both parents express the wish for the children to have such a meaningful relationship. The mother, however, although apparently agreeing to equal shared care time, says that is something to look to in the future rather than currently, particularly as she says the strength of the father's relationship with A is not as strong as that with N. She accepts the father has a strong relationship with N.
I do not doubt that both parents have a capacity to provide for the needs of the children (s.60CC(3)(f)), including their emotional and intellectual needs, both on an interim basis and on a long-term basis.
Some concerns from the proposals
It seems to me that there are a number of concerns that I need to look at in the two proposals, having regard to what Mr Kevin Percival has said in his report and having regard to the undisputed facts in the case.
One of my concerns is the number of changeovers that are set out in the various schedules. Mr Percival referred to this also. There is a slight decrease in that proposed by the mother from the current arrangements as she would allow I think for one extra night for A with his father. But still in my mind there are a significant number of changeovers. That in my view is not desirable. It is not in the best interests of the children.
The mother's proposal also provides for some separation of the two siblings – bearing in mind that A is only two years old, whereas N is six years old. In general again I think it is undesirable to separate siblings.
I would therefore be looking for other significant concerns which would justify a separation in circumstances such as this. The mother has pointed to the strength of the father's relationship with A and suggests that relationship is somewhat different from that which he has developed with N. Taking into account the earlier parenting patterns for the two children, and on the material before me, I cannot be satisfied that this issue is of such significance to justify splitting the children in the way proposed by the mother.
I note – and there is some dispute in relation to how this was implemented – that the mother spent two weeks overseas and left the children in the father's care with, she says, some female relatives. The father has put on an affidavit from one of those relatives who said that he looked after the children, she did not.
Kevin Percival’s report
I want to refer to the conclusions and assessment of the family consultant, Mr Percival, which I think are helpful:
15. Both parents are highly motivated to maintain the best interests of their children and there is no significant or distinguishable difference that sets one parent significantly apart or ahead of the other parent, unless it is the lesser role played by the father in [A]'s life as asserted by the mother.
16. The capacity of the parties to organise and manage a shared care arrangement will be affected by the mother's currently held view that this model is not in the best interests of the children. Without her commitment it is more likely than not that if adopted, this model will have limits imposed upon it by the mother's views and her possible lack of collaboration.
17. The mother proposed a number of views and reasons why there should not be a shared care arrangement in this matter, many of which stem from her claim that the children are not as experienced at staying with their father, and his partner, as they need to be before being away from her for substantial amounts of time. I had no way of testing this view other than asking the father about the mother's concerns. Not surprisingly he refutes the mother's charges and stated that he is well qualified to care for the children on an equal shared basis. This issue ought to be clarified through closer examination of the claims of each parent as it is the point at which the mother rebuts the father's belief that the quality of his relationship with the children will sustain a shared care arrangement.
18. The current care arrangements described by the parties struck me as being fragmented and requiring the children to move back and forward between two homes on too frequent a basis given their young ages. While a fifty fifty care arrangement may not be the ideal model for the mother I formed the view that the father is sufficiently grounded in the childrens' needs to warrant his spending extended time with them in a care model that requires less uplifting of the children between homes.
Conclusions
In KML & RAE [2006] FMCAfam 528, Halligan FM said:
111. For a parenting arrangement to involve a child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at the least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. In addition, the time it provides must allow the parent to be involved in the child's daily routine and in occasions and events that are of particular significance to the child, and the time must allow the child to be involved in occasions and events that are of special significance to the parent.
112. These dual minimum requirements of when the time is to occur and what the time is to achieve by way of mutual involvement of parent and child in each other's lives relate to the dual aspects of the time being both substantial and significant respectively. A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child's daily routine.
FM Halligan is referring there of course to substantial and significant time. But I think what he says is also relevant to cases where the issues revolve around equal time.
In the result, it seems to me that the best interests of these two children, given the material that I have before me, is served by orders which will provide for them together to spend equal time with their parents.
I am prepared to accept the proposal put forward by the father. I note that it provides no longer than three nights away from each parent, which given A's age is appropriate. In other circumstances, I may have been concerned about that time away from the mother. The father’s proposal also involves fewer changeovers and no splitting of the children. On the material before me, having regard particularly to what Mr Percival has said, I am satisfied that it is in the best interests of the children for there to be a fifty-fifty arrangement pending a final hearing of this matter.
I think this is a case where it is appropriate to apply the provisions set out in the legislation for equal time. I do not think it is impracticable and I think it is in the best interests of the children.
I note that reference has been made to Goode & Goode (No.2) [2007] FamCA 315 on remittal from the Full Court in Goode v Goode (2006) 36 FAM LR 422 and the differences and similarities with this case. Goode v Goode sets out a framework in which these decisions are to be taken. I have had regard to that framework. I have reached a different conclusion in relation to these children from that of the Family Court for the children in Goode (No 2).
I accordingly propose to make orders in accordance with those put forward by the father.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Hal Tilemann
Date: 14 July 2007
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