R and R
[2002] FMCAfam 243
•9 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2002] FMCAfam 243 |
| CHILDREN – Best interests – shared care – Family Law Act 1975, ss.60B(1), 60B(2), 68F, 68F(2) – B and B: Family Law Reform Act (1997) FLC 92-755 – T & N [2001] FMCAfam 222 – A v A (Minors) [1994] 1 FAM LR (Eng) 669. |
| Applicant: | C A R |
| Respondent: | D R |
| File No: | (P)DNM2630 of 2001 |
| Delivered on: | 9 August 2002 |
| Delivered at: | Darwin |
| Hearing Dates: | 1 & 2 August 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Cassells |
| Solicitors for the Applicant: | Terrill & Associates |
| Counsel for the Respondent: | Mr A Young |
| Solicitors for the Respondent: | Sivyer & Associates |
ORDERS
That the parents retain joint responsibility for making decisions concerning the long term care, welfare and development of the children of the marriage D R born 25 April 1995 and J R born 6 October 1997.
That the children of the marriage D R born 25 April 1995 and J R born 6 October 1997 live with both the parties as follows:
WITH THE HUSBAND :
(i)From 2.45pm Thursday until 2.45pm the following Monday each alternate week commencing 15 August 2002; and
(ii)From 2.45pm Thursday until 2.45pm the following Friday each alternate week commencing 22 August 2002; and
(iii)Each Father’s Day from 6.00pm on the day before Father’s Day until 6.00pm Father’s Day; and
(iv)Half of each school holiday period, with the husband to have the first half of all school holidays commencing in 2002 and each alternate year thereafter and the second half of all school holidays commencing in 2003 and each alternate year thereafter.
WITH THE MOTHER:
(v)At all other times and notwithstanding anything contained in order 2 herein, from 6.00pm the day before Mother’s Day each year until 6.00pm on Mother’s Day each year.
That unless the parties agree otherwise, the said children spend:
a.From 9.00am to 6.00pm on the husband’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the husband; and
b.From 9.00am to 6.00pm on the wife’s birthday, unless such day falls on a school day and in that event, from 2.45pm until 6.00pm on that day with the wife; and
c.From 7.00pm on the eve of Vesak Day until 7.00pm Vesak Day and from 7.00pm Sinhala New Year’s Day, with the husband, unless such days fall on a school day and in that event, from 2.45pm until 6.00pm those days. In the event that either day falls during a school holiday period, then such contact is suspended if the children are holidaying outside Darwin with the mother.
d.For a minimum of 2 hours on the children’s birthdays if such birthdays fall on a school day and for a minimum of 5 hours if they fall on a non-school day with the non-residential parent; and
i.Subject to the children being within 100km of the Darwin GPO, from 12 noon Christmas Eve until 12 noon Christmas Day with the wife; and
ii.Subject to the children being within 100km of the Darwin GPO, from 12 noon until 7.00pm Christmas Day with the husband; and
iii.Subject to the children being within 100km of the Darwin GPO, from 12 noon New Year’s Eve until 12 noon New Year’s Day with the wife.
e.At all other times as may be agreed between the parties from time to time.
That the parties inform each other at all times as to their current residential address and contact landline telephone number and email address; including addresses and telephone numbers whilst on holidays outside Darwin.
That each of the parents have responsibility for making decisions concerning the day to day care, welfare and development of the said children whenever in their care.
That each of the parents be permitted to telephone the children at all reasonable times.
Pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in annexure A.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM2630 of 2001
| C A R |
Applicant
And
| D R |
Respondent
REASONS FOR JUDGMENT
Applications
Before the Court were competing applications for parenting orders in respect of the parties’ two children, D, born 25 April, 1995 and currently 7 years and 3 months of age and J, born 6 October, 1997 and currently 4 years and 10 months of age.
The applicant in the proceedings is C A J (formerly R). I will refer to her in these reasons for judgment as the wife for convenience and no other reason. The respondent is D R. I will refer to him as the husband for similar reasons.
Background
The wife is 35 years of age. She lives in rented accommodation at
6 K Street, Tiwi. At the present time she is in receipt of a sole parent pension. Since the separation of the parties, she has re-partnered. Very recently and by this I mean within the last few days, she has begun to live with C F. He is a manager at the D E C.
Mr F is the father of two children, A who is 5 and A who is 4. These children live predominantly with their mother, J H. However, they have contact with their father on alternate weekends and during school holidays.
The husband is 38 years of age. He lives in the former matrimonial home situated at 46 N Terrace, N. By occupation he is an IT consultant employed by Telstra. He has not formed another relationship since the parties separated.
The wife was born in Brisbane but grew up in Sydney. The husband was born in Sri Lanka but has lived in Australia for many years. Both parties hold tertiary qualifications related to business and management.
D is currently attending N Primary School, where she is in grade 2/3. She attends school from 8.10am until 2.45pm each weekday. J attends pre-school each weekday from 8.15am until 11.15am. Next year he will commence primary school. At present he attends child care at D C C one afternoon each week.
There is nothing before the Court to indicate the children are not in good health and are not progressing normally in their development. The evidence indicates that both children are much loved by all who have an interest in them. Neither child has any special need.
The matters in dispute between the parties are in a comparatively small compass. To their great credit, in somewhat difficult circumstances, the parties have been able to agree substantially between themselves as to what the future arrangements for the care of D and J should be. Albeit this agreement was reached late in the piece and sadly did not avoid the need for a contested hearing.
The parties agree that each of them should spend extended periods of time with the children and as a result have substantial input into their care, welfare and development.
The parties were able to agree that the care of the children should be shared between them equally during school holidays. They were also able to agree on arrangements for the children to spend time with both their parents on significant days such as the children’s birthdays, Christmas and Buddhist Holy days.
However, they were unable to agree as to the exact details as to how the care of the children was to be divided between them on a fortnightly basis during the school year.
The husband sought orders that D and J live with him as follows:
i)For the first week of each fortnight from after school on Thursday until after school on the following Monday;
ii)In the other week of each fortnight from after school on Wednesday until after school on the following Friday.
Essentially what this boils down to is the children spending six evening or sleeping overnight at the husband’s home on six occasions each fortnight.
The wife, for her part, sought an order that the children should live solely with her and that the husband should have contact with them as follows:
i)For the first week of each fortnight from after school on Thursday until after school on the following Monday;
ii)In the other week of each fortnight from after school on Thursday until after school on the following Friday.
Such a regime amounts to the husband having contact with the children for five evening per fortnight or sleeping overnight at the husband’s home on five occasions each fortnight.
Thus it can be seen that the area of dispute between the parties is comparatively small. I was concerned that this extra night had assumed an almost symbolic significance to the parties in their bitter struggle with one another. I was fearful that if one or other of them gained the extra night per fortnight that they were in dispute about, that he or she would have been seen by the other to have won some sort of competition between them for the control of the children. I was concerned that this struggle for the extra evening had assumed a significance to the parties out of proportion to its real importance to the children concerned. The sixth night seemed to have become some mythical high point in a bitter war between the parties, which each of them was determined to win no matter what the cost. I was concerned that this struggle had the potential to do untold damage to the parenting relationship between the parties. For that reason, I urged the parties to see if there was any common ground between them and if the matter could be resolved without the necessity for a final contested hearing. Sadly, this middle ground could not be found and the hearing proceeded on this basis.
Evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief. Each of them also relied on affidavits sworn by other witnesses. In the wife’s case, she relied on an affidavit sworn by her current partner, Mr F. In the husband’s case, he relied on an affidavit sworn by Ms J H, who is Mr F’s previous defacto partner.
However, neither Mr F nor Ms H were required for cross-examination. It should be pointed out that Mr F and Ms H are themselves engaged in litigation in the Federal Magistrates Court regarding parenting orders for their two children, A and A. There seems to be a high degree of enmity currently between them and it is perhaps not surprising that they should align themselves against one another in the current parties’ dispute.
In addition, the Court was assisted in the resolution of the matter by a family report prepared by a psychologist, Stephen Heydt. Mr Heydt was cross-examined by counsel for the wife but not by counsel for the husband. Accordingly, the vast majority of the evidence in this case was provided by the parties themselves.
Chronology
It is now necessary to briefly outline the various matters that bring the parties to this point. The parties met in Darwin in mid 1987, when the wife was on holiday. They subsequently began to live together in Darwin in April of 1988. They married on the 8th of July, 1989.
The parties lived in Darwin during the entire period of the marriage. They separated in July of 2000. The marriage between them was dissolved on the 17th of April, 2002.
Arrangements between them for the care of the children proceeded on an ad hoc basis following separation. It seems that the parties each hoped that they would be able to reach agreement in respect of these arrangements without the intervention of the Court. However, although both parties actively sought counselling and mediation in an attempt to resolve parenting issues between them, it seems that tensions between them have increased rather than decreased over time.
The tensions between the parties arose from the husband’s desire for the children to spend extended periods of time including overnights with him and the wife’s view that such a regime was unsuitable for them.
The wife was concerned at the request of the husband for the children to be away from her care for what she believed were unduly long periods of time. For his part, the husband was concerned that his input into the care of the children was being unnecessarily curtailed by the wife. For these reasons, a practice grew up following separation whereby the husband would have contact to the children overnight on each Monday and each Thursday evening of each week and overnight on Friday on one weekend each fortnight and overnight on Saturday on the other weekend of the fortnight. This seems to have been the genesis of the six nights contact per fortnight as currently advocated by the husband.
This arrangement was formalised by orders made with the consent of the parties by the Federal Magistrates Court at Darwin on the 26th of February, 2002. These orders also envisaged the sharing of school holidays between the parties.
It seems that these orders were not satisfactory to either party. On the husband’s part they did not allow him to spend an extended period of quality time, including a full weekend with the children.
For the wife’s part, the division of time between the parties and the children was unsettling and confusing for the children and from her perspective the children did not have a sense of where their home was. She believed that for the children to move from sleeping at one parent’s home to sleeping at the other’s every few days was difficult for them to adjust to and was potentially detrimental to their well-being. To her mind, these difficulties were compounded by the difference in parenting style of the parties themselves, the high level of tension between them and the difficulty they each had in communicating with the other without argument.
Accordingly, it was the wife’s position until recently that the consent orders of the 26th of February 2002 should be changed so that the husband had contact with the children for three hours on two afternoons per week as well as overnight on one evening of each weekend. Accordingly, on a final basis, she wished to reduce the number of overnight stays the children had with the husband each fortnight. On any view therefore, her position as announced at the commencement of the hearing before me on the 1st of A 2002, represented a substantial concession on her initial position. The differences in the competing proposals of the parties had been significantly reduced.
It may very well be the case that a major catalyst for the change in the wife’s position was the release to the parties of Mr Heydt’s report. Mr Heydt wrote his report on the assumption that the wife wished to reduce the number of overnight contacts the husband had with the children.
The issues
The most significant issues for resolution in this case seem to be the following:
·Which of the competing proposals of the parties is likely, on balance, to be in the best interests of the children concerned;
·What are the consequences for the children of the current level of mistrust and hostility between the parties and of the difficulty that each of them concedes that they have in communicating with the other;
·Given these difficulties, does that render one of the proposals of the parties superior to the other.
Discussion
The parties presented as very different people in temperament when they gave their evidence. The wife appeared nervous and highly-strung. She frequently clutched at her abdomen during her evidence to such an extent that I feared that she was in actual physical discomfort. However, she assured me that she was just nervous about the court process. As a result I formed a view that she was somewhat emotionally vulnerable and fearful.
The husband was at pains to appear reasonable and calm and a person whose emotions were well in control. He presented himself as a conscientious and competent parent. He is also very methodical and precise by nature, to such an extent that at times he appeared to me to be somewhat pedantic. An example of this was a computer derived graph he had produced, which detailed the division of labour between the parties in the matrimonial home prior to separation. This listed such things as who of the parties should put on the kettle and which of them should put things in the car in the morning. The husband has also at times produced detailed documents which delineate, with some exactitude, agreements that the parties have reached in respect of day to day matters relating to the children. Examples such as these confirmed my view that the parties were quite different in temperament.
Given these temperamental differences between the parties, it is perhaps not surprising that they now have considerable difficulty in communicating with one another. It is also apparent that they each come from different cultural backgrounds. It seemed to me that the husband holds quite conservative views as to the relationship that should exist between parents and children. He is a strict and formal though loving parent. He is anxious that the children should apply themselves at school from an early age and do well. I suspect that he sees the role of the father as being very much the head of the household. I also believe that the husband is likely to be a more strict disciplinarian with the children and that the wife would have a more laissez faire approach to discipline. My view was confirmed by the parties themselves as in their evidence each indicated that they have a different parenting style to the other. I am not critical of either of them in this regard. Their different approaches to parenting are as a result of their different backgrounds, experiences when growing up and temperament. One approach is not necessarily superior to the other. However, I must in due course consider what are the implications of the different approaches to the parenting of the children concerned in this matter.
The husband conceded in his evidence that he had experienced some shock and unhappiness at the end of his marriage, but indicated that he had come to terms with most of the bitterness he had felt towards the wife. I believe, for quite understandable reasons, that he still feels deeply unhappy at the loss of his marriage and does feel some degree of resentment towards the wife, particularly because she has re-partnered with Mr F. On the other hand, the wife sees the mother as being the parent who should be primarily responsible for the care and nurture of young children. She is suspicious of the motives of the husband for pursuing his application for what she says amounts to the joint residence of the children. She sees the husband as being controlling of her and undermining of her role of the children’s mother and primary care giver.
In these circumstances, it is not surprising that each of the parties should have concentrated in their evidence on what they saw as the negative aspects of the other’s personality and parenting ability.
The fears that each of them have held about the outcome of these proceedings have made it practically impossible for them to communicate meaningfully about their children and share responsibility for parenting them. It is in this context that they are to be congratulated for being able to narrow the issues in contention between them to essentially one that is whether the care of the children should be divided between them 6/8 nights per fortnight as the husband wishes or 5/9 nights per fortnight as the wife wishes. As I say, I have my suspicions that this distinction has become largely a symbolic one for each of them and in the long run will have little significance for the children concerned.
Having said these things, I have no reason to doubt that each of the parties is a loving and caring parent and that both of them are thoroughly devoted to the best interest of D and J.
During the marriage both parties worked very hard. The husband was engaged in full time work and was also studying for tertiary qualifications. The husband has worked for Telstra for nearly 20 years. He has been keen to advance himself in this organisation for the greater good of his family. I have described the husband as being conservative. During the marriage, the husband saw himself as being very much the breadwinner for his family. I mean no criticism at all of him for this. Indeed he is to be commended for how hard he has worked and for the fact that he has been able to provide for his family.
The wife too has worked hard to acquire professional qualifications in accountancy during the marriage. She also worked during the marriage. The wife breastfed both D and J. She took twelve months off work following the birth of each child. Later, her qualifications in accountancy enabled her to work part-time from home and continue to care for the children. As a result, I have no doubt that she has been the primary carer for the children for most of their lives. This is an important matter and has no doubt coloured her response to the husband’s application.
The wife characterises the husband as being controlling towards her and resentful of having to pay child support. It is for this reason she believes that he has taken his stance he has in regards to her application. The husband denies that he is motivated by financial concerns for seeking the orders that he does, although in a practical sense the number of nights the children spend with each of their parents will effect the calculation of child support.
The husband characterises the wife as having difficulties with alcohol and being emotionally unstable. He is also critical of Mr F and has enlisted Mr F’s previous partner, Ms H to detail his short-comings as a parent and a person.
In these circumstances, it is hardly surprising that both parties should describe difficulties in communication with the other. Notwithstanding the concessions the wife has recently made, the parties remain deeply suspicious of one another and of the real motivations that each has for maintaining their respective positions.
The wife describes the husband as a person who has withdrawn from communication with her and who has in effect sent her to coventry. The husband describes the wife as a person who has in the past used communications as a means to escalate the dispute between the parties. Both say the dispute between them has had a detrimental effect on the children concerned, although the wife believes that it has been more detrimental than the husband does.
The wife acknowledges that at the time of the breakdown of the marriage, she had a problem with the over-consumption of alcohol. However, she said that she had sought appropriate treatment and counselling for this problem which it is now resolved. She deposed that she is once more a social drinker.
The husband remains suspicious that the wife’s drinking is not under control. He is also suspicious of Mr F and his drinking, as a result of what he has been told by Ms H. However, he has no direct knowledge of the matters raised by Ms H and concedes that since October of 2000 he knows of no incidents which have involved the wife drinking to excess with adverse consequences. Mr Heydt was of the view, from his observations of the wife, that she did not have a problem with alcohol to such an extent that it was currently capable of causing her physiological or psychological damage.
In April of 2002, the wife wished to take the children to Sydney for a holiday to attend her father’s 60th birthday celebration. The husband objected to this, as he was concerned that D would miss too much school. The wife saw this as an unwarranted intrusion into her affairs and an unreasonable restriction on them. As a result of this dispute between the parties, orders had to be made by the Court. These orders allowed the wife to take the children on the trip as she wished. However, to my mind, the incident serves to underline the difficulty that the parties have had in reaching what, in the overall scheme of things, I regard as a somewhat trivial matter. At least up until recently, any matter involving the care of the children has had the potential to become a flash point between the parties in their ongoing conflict.
Sadly, each party characterises communications between them as becoming more difficult rather than easier, since the interim orders of February, 2002.
The husband now insists that all communications between him and the wife be by email or text message. He has also taken the extreme step of tape recording conversations between him and the wife. In his affidavit he says as follows:
“I have requested that our communications be by text message or email so as to prevent arguments on the telephone or in person. I would also like to be able to communicate verbally with the applicant however I feel I have been verballed in the past and conversations twisted for the purpose of court proceedings.”
As previously indicated, the husband has also insisted on the wife signing informal written agreements regarding care arrangements for the children, if there is a departure from the current orders. The husband acknowledges that this is somewhat pedantic but he requires it in order to prevent the wife from “resiling” from any agreement that has been reached. In my view, this is yet another indicator of the difficulty the parties have in having a cooperative regime for the parenting of their children.
The wife says that the husband has in the past denigrated and abused her. She acknowledges that she herself has responded with abuse to him. She describes incidents where the husband has refused to talk to her in spite of the entreaties of D that the parties deal with an ordinary request from D in respect of arrangements for her care. Such incidents she says have caused D great distress.
Regardless of the rights and wrongs of the parties’ relationship, the current situation represents a sad state of affairs. The parties’ relationship cannot be described as cohesive or effective. Quite the contrary. Both parties describe the behaviour of the other at contact handover as having a detrimental effect on the children. It is not in my view, necessary for me to attribute blame for the current difficulty in the relationship between the parties. However, as is clear, the parties currently view each other with a high degree of suspicion and find it almost impossible to discuss even the most trivial matters regarding the children with one another. Although, I would be delighted to be proved wrong, I believe that the parties will continue to have difficulties communicating with one another for the foreseeable future.
The husband is currently engaged in full time work. The wife is not. She receives a sole parent pension and child support from the husband as her only sources of income. Financial matters continue to be a source of tension between the parties, although there is no definite evidence that indicates that the husband is motivated by child support in seeking six nights contact per fortnight to the children, as the wife implies. It will also be necessary for the husband to adjust his working hours if he is successful in his application. He proposes leaving his work at 2.20pm each afternoon that he has the children to be able to collect them from either school or daycare. As J finishes pre-school at 11.15am on these afternoons, the husband proposes that J attend daycare at D or, if she prefers it, that J spend the afternoon with his mother and be collected from her. This would be an arrangement that would need to be in place until the start of the 2003 school year when J begins primary school.
The wife is somewhat critical of these proposals, as being unduly complex and likely to lead to more rather than less interaction between the parties and as a result to more hostility. I accept that the husband is genuine in his commitment to changing his working hours. However, I confess being somewhat sceptical that, given his past conduct, he will not work from home in future. He struck me as being very work focused and driven. The arrangement as proposed does not strike me as unnecessarily complex. However, it would need the commitment of both parties to succeed. I am not altogether convinced that this support would be forthcoming from the wife.
The wife’s argument for the Court to prefer her proposal over the husband’s can be summarised as follows:
·Her proposal answers the husband’s concerns regarding substantial block contact to the children;
·She does not work and has been the children’s primary carer and as such it is appropriate that she have responsibility for the majority of the children’s care;
·She points to the continuing conflict between the parties as making what is akin to a shared residence arrangement untenable;
·The differing parenting styles of the parties are confusing to the children and as such militate against the arrangement as proposed by the husband.
The husband’s argument for the Court to prefer his proposal over the wife’s can be summarised as follows:
·Up until now he has had six nights per fortnight with the children. There is no necessity to change this arrangement other than to realign the nights into a configuration that is, by agreement, more convenient to the parties and the children;
·It is not appropriate to, in effect reduce his contact to the children to five nights per fortnight, as the children require substantial periods of time with him to maintain and strengthen their bond to him.
It is in many ways regrettable that the parties have elected to compete with one another on such strictly arithmetical terms regarding the time the children will spend with each of them. As a result, as I have already indicated, I am concerned that the “sixth night” has become imbued with what seems to be an almost symbolic significance to each of them. It would have been preferable if the parties had concentrated on the quality rather than quantity of the time they each spend with the children. I cannot help but think, that in the context of this case, no matter what orders are made, one party will perceive that he or she has won and that their position has been vindicated. This perception is to be discouraged.
The proposals of the parties are very close to each other. As a result, it is inevitable that this is a finely balanced case. Both parties have cogent arguments as to why their position is to be preferred. Accordingly, it is difficult to differentiate between the respective positions of the parties.
The family report
It is now necessary to discuss the evidence of Mr Heydt and the family report. Mr Heydt is a psychologist and a Family Court Counsellor. He holds both Bachelor and Masters qualifications in Psychology and Education. He has been practicing as a psychologist since 1989. He has a particular interest in the psychological effects of trauma on children and has worked with victims of trauma for approximately seven years. I found him to be an impressive and well qualified witness. He has considerable experience of interviewing and observing children with their parents. I accept his evidence.
When Mr Heydt interviewed the parties and Mr F and observed each of them with the children, the positions of the husband and the wife were still somewhat polarised. When, during the course of his evidence, Mr Heydt was advised of the concessions the wife had made, he indicated that he was pleased at this and that each of the parties should be congratulated for having been able to reach this accommodation.
In Mr Heydt’s view, both D and J were bright and friendly children, who were clearly attached to both of their parents. He found both children to be well behaved and each gave him the impression of being well adjusted, although he was concerned that they might possibly be suffering some distress at the current poor relationship between their parents. It was obvious to Mr Heydt that the current acrimonious nature of the relationship been the parties was somewhat unsettling to the children.
Mr Heydt concurred with my view, that the parties currently had a high degree of difficulty communicating with one another and that sadly this difficulty has intensified rather than lessened in the period since the parties had separated. He was also of the view that Mr R had not fully adjusted to the end of his marriage and still felt some understandable bitterness because of it. I also agree with Mr Heydt’s assessment in this regard.
Mr Heydt was concerned at the dysfunctional nature of the communications between the parties, which he termed “controlled” aggression. He believed that the children would be likely to be confused and distressed by exposure to such conduct on the part of their parents. Clearly, it would be in the best interests of the children if this behaviour were to stop forthwith. However, from his observations of them, Mr Heydt believed that D and J had adjusted as well as might be expected to the current situation. He believed that they were likely to overcome any regressive behaviour they had previously exhibited in reaction to stress they felt at their parents’ conduct post separation.
It seems to me that D and J are pleasant and much loved children by both of their parents. The current situation that they are in has the potential to do them some emotional harm. However, they have largely weathered this difficulty. I suspect because of the love they feel for and receive from both their parents. However, to use Mr Heydt’s words:
“…their continued well being is predicated on the timely expedition of the current action and the parents decision to harmonise their relationship."
I heartily concur with Mr Heydt’s sentiments. The parties are to be encouraged to do all they can to put past grievances behind them and to work together for the good of their children. However, it seems inevitable that it will take sometime for the parties to achieve normal communications with one another.
In his recommendation contained in his report, Mr Heydt was of the view that both children needed to spend part of the week and weekend with each parent to allow both parents to participate in different school and non-school activities. In terms of achieving these objectives, Mr Heydt could see little if anything to differentiate between the two current proposals of the parties in regards to care arrangements for D and J.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for D and J.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.
In this case, although the proposals of the parties are very similar, the husband seeks what is tantamount to a shared residence arrangement. In the case of T & N [2001] FMCA fam 222 Federal Magistrate Ryan set out a list of the various factors that weighed for and against such an arrangement. They are as follows:
·The parties’ capacity to communicate on matters relevant to the child’s welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on those matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extracurricular activity.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s wishes and the factors that influence those wishes.
·Where siblings live.
Section 68F(2) – determining the best interests of the children
a) The children’s wishes
The children concerned in this matter are still of tender years. As such, I do not believe that even if the children had expressed a wish as to where and with whom they wished to live that such a wish should be given a high degree of weight. Certainly, in the narrow confines of the issues in dispute in this matter, it is not likely that the children would be able to differentiate with any degree of clarity between the competing proposals of the parties.
The husband annexed to his affidavit a calendar allegedly completed by D and indicating on a daily basis with whom of her parents she wished to spend time. I agree with Mr Heydt’s assessment that such a calendar is likely to be indicative of a desire on D’s part to please both her parents, rather than an expression of any definite wish on her part.
b) The nature of the relationship between the children, their parents and other significant people
The evidence of Mr Heydt is clear. The children enjoy a close and loving relationship with both their parents and with one another. There is also nothing to indicate that there is anything untoward in their relationship with Mr F, who because of his relationship with the wife is now a significant person in their lives. I accept Mr Heydt’s assessment that D and J interact happily and appropriately with Mr F and have become close to his children A and A. Indeed, I accept that D in particular enjoys the weekends she spends with them.
In my view, both D and J are much wanted and loved children by both their parents. The evidence indicates that both children were breastfed by the wife following the date of their respective births and that she left the paid workforce to care for them for a period of twelve months in each case. It is more likely than not, given that the husband continued to work full time and the wife was able to adjust her work commitments so as to be able to work from home following her maternity leave, that it is she who has provided the majority of day-to-day care for the children. Certainly the evidence indicates that the children have never spent more than a few days away from her care.
In the overall scheme of things, given the comparative similarity of the competing proposals of the parties and the still tender ages of the children concerned, it is in my view an important consideration that she has been the primary carer of these two children. It is one factor, that in a finely balanced case such as this one, is liable to tip the balance in her favour rather than in the favour of the husband.
I do not intend any criticism of the husband in any way, for during the parties’ marriage he saw himself as his family’s financial provider and its head. As a result he worked very hard both to improve his qualifications and to provide for his family in this regard. This is conduct for which he is to be commended.
c) The likely effect of change in the children’s circumstances
As I am at pains to indicate to both parties, there is very little to differentiate between their proposals in either the long or short term. Both their proposals will ensure that the children continue to maintain the close and loving relationship they currently enjoy with both parents. Whichever proposal is ultimately preferred, it will have little effect on the children concerned, as they will continue to spend some nights each fortnight with each of their parents.
I do not accept that the children are necessarily confused currently as to where their true home is. Children, like adults, can have more than one home. As they grow older, the children may express a preference to avoid having to move around the paraphernalia of school and childhood from one home to another and back again. But that time is not yet here. The location of friends may in time also dictate where they each prefer to spend the majority of their time. If the parties are supportive of the orders made and the children are clear that their parents support the orders, the children will be able to cope with the implications of the orders. That is the key to maintaining stability for the children in light of the parties’ now separated circumstances. This support will in future prevent the children becoming confused.
The only consequence of the change in circumstances in the short term may be in how the parties each individually react to the orders that will be made today. That is that one of them may become aggrieved at the result and this may have the consequence of further retarding the possibility of the parties improve working to their parental relationship. I hope that this is not the case. Neither party should consider that they have either won or lost in the proceedings. Rather the orders made will ensure that they each of them is able to maintain their current good relationship with the children concerned and have a significant input into their care and development. Whatever orders are made, they will ensure that the high quality of this relationship will be maintained.
d) The practical difficulties associated with contact
Given the orders that each party proposes and the close proximity of their homes in the northern suburbs of Darwin, this is not a relevant consideration in the context of this case.
e) The capacity of each parent to meet the children’s needs
I am satisfied that both parents are capable of providing for the children’s needs, including their emotional and intellectual needs.
The husband has indicated his preparedness to reduce his working hours so as to be available to care for the children when they are with him. This is to his credit. It is also apparent that he takes a keen interest in D’s schooling. It is clear that he wishes for both children to reach their full intellectual capacity at school. The wife is currently available all the time to care for the children due to her decision to quit the paid work force. She too, is keen that both D and J realise their full potential.
I have no reason to believe that the facilities available at either parent’s home are not adequate to provide for the needs of these two children.
f) The children’s maturity, sex, background and other characteristics
Both children are heirs to a rich cultural and religious heritage. It is incumbent in the position that both parties have taken that each recognise that the children are entitled to share in both Australian and Sri Lankan traditions. In particular the wife recognises that it is appropriate that the children understand the tenets and traditions of Buddhism.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
The husband, through the evidence of Ms H has raised concerns about the appropriateness of Mr F to have contact to the children. He himself has no direct evidence obtained from his own observations of Mr F. To my mind the concerns remain somewhat nebulous. In many ways it is regrettable that Ms H and Mr F have been allowed to litigate their own dispute regarding their children in these proceedings.
The fact remains that on the husband’s own proposal the children concerned will spend the majority of nights per fortnight with the wife. Given this situation, it does not seem to me that this is a case where there are significant considerations concerning either child being exposed to physical or psychological abuse. In particular, I do not believe that either of the parties would willingly expose either D or J to the prospect of harm.
h) The attitude to the children and the responsibilities of parenthood
Both parties have evinced a positive attitude to both D and J and both are willing to assume unflinchingly the heavy responsibility involved with parenthood. However, their ongoing dispute and their current inability to communicate directly and effectively with one another has the potential to do untold emotional harm to the children concerned. Neither party, in spite of their protestations to the contrary, struck me as being particularly supportive of the other’s relationship with the children. They remain deeply suspicious of one another and of the motives of the other for bringing and maintaining the current proceedings. However, it is now incumbent in their respective positions, that each of them recognises that it is in D and J’s best interest to maintain a relationship with both of their parents. It is part of the duties of parenthood to be supportive of a child’s right to maintain a good relationship with both of his or her parents. It is also important that children be shielded from the deleterious effect of the conflict between their parents.
However, I think that I would be naïve if I thought that the parties would be able to move on from their current level of hostility for one another in the short term with any degree of ease. In particular, on the basis of Mr Heydt’s assessment, I think the husband will find it very difficult to have normal face-to-face conversation with the wife for some time. Mr Heydt believed that the husband was still going through a process of grieving for the loss of his marriage. He himself acknowledged at least a residual level of bitterness. Accordingly, each meeting between the parties has the potential at this time for some form of conflict. I hope that communication between the parties can be normalised as quickly as possible. The husband has indicated a willingness not to tape record his conversations with the wife in future. This is a positive sign. The end of litigation is also likely to lead to an easing of tensions between the parties.
The parties also have somewhat different parenting styles as a result of their differing temperaments, backgrounds and experiences. Mr Heydt described the husband as a “conservative” parent of “old fashioned views”, one who believed that the children should “do what they are told”. The wife is likely to be somewhat more permissive. One style is not necessarily superior to the other. Like the parties themselves, their parenting styles are different.
In my view, the current impediments to free communication between the parties and their differences in parenting ethos are important factors, in a finely balanced case, that militate against a situation approaching equality of care rather than towards it in this case.
i) Family violence involving the children or a member of the children’s family
This is not a case involving family violence.
j) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents’ circumstances change and as a result arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking further orders from the Court in future. Litigation is costly in both financial and emotional terms.
I am hopeful that the orders made today will assist the parties in moving on from their current level of hostility for one another. The wife, in particular, has made considerable concessions towards the husband’s position.
In the present case a decision must be made between two finely balanced proposals. I am uncertain as to which of the parties is likely to be more easily able to move on and accept the decision if it is against him or her. To a large extent both parties are fairly stubborn. However, on balance, it seems to me that an arrangement that is akin to a shared residence arrangement is likely to lead to more hostility between the parties in future rather than less, particularly as far as the wife is concerned. I do not believe that she would readily accept such an arrangement and be supportive of it. I think she may try to undermine it and this may lead to further proceedings. However, this is only one factor among several.
Conclusions
As I am at pains to point out to the parties, this is a difficult and finely balanced case. Both the husband and the wife have much to offer D and J. Both the husband and the wife clearly love D and J very much. Thankfully, both parents will be able to play a full and rewarding role in children’s lives from now on as the children develop and gain their maturity. Both parents will be able to have a mixture of weekday and weekend time with the children and spend time with them in both a school and leisure time context. Such an arrangement will be for the children’s greater good.
However, I have formed the view that, by a narrow margin, the children’s best interests will be best served by them spending more nights per fortnight with their mother than with their father. I have reached this conclusion for the following major reasons. Firstly, the situation is clear that for the majority of the children’s lives to date the wife has been their primary carer. Secondly, there is no prior history between the parties of them having an easy shared care arrangement in respect of D and J. The parenting relationship between them has in fact been one marked by conflict and suspicion. Thirdly, the parties are likely to continue to have different views in respect of a number of important matters related to discipline, school work and other like matters in respect of the children. As such, it is in my view more appropriate that they live more in one of their parents’ households than the other. Fourthly, given the current inability of the parties to communicate effectively with one another, it is unlikely, in my view, that they will easily be able to compromise in respect of the differences they have in respect of parenting matters. An example of this was the recent holiday in April that the wife wished to take. I have also considerable doubts that in any genuine sense, either of the parties respects the other as a parent. This is another factor that militates against a situation approaching joint care. Finally, given the current entrenched nature of the communication difficulties between the parties, I think that it is a situation fraught with complexity for them to have what is tantamount to a shared care arrangement.
Most importantly, I bear in mind the conclusion of Mr Heydt that from the children’s perspective there is little to choose between the two proposals. Each will allow the children to have extended quality time with both their parents and for their parents to play an intrinsic part in each of the children’s lives and maintain a proper relationship with them.
The wife wishes the orders in respect of the children to be expressed as a residence/contact order. I was not convinced by her arguments or able to see easily in the circumstances of this case that the expression of the orders in this way would necessarily benefit the children. The parents of these children should have an equality of importance in their lives as they grow to maturity. Both parents are willing and able to assume that role of importance.
For reasons that I have already provided, I do not think that the children are likely to be confused by the orders, especially if the parties are supportive of the orders and convey that support to the children themselves by their attitude and conduct. The orders have come about, in a substantial fashion, as a result of agreement reached between the parties. Accordingly, there appears to me to be no practical reason why the parties should choose not to be supportive of them.
In a very real sense, the manner in which the orders are to be expressed has assumed a symbolic significance to each of the parties concerned. The husband does not wish to be characterised as a “contact” parent. In reality, no matter how his period of time with the children is described, he will be with the children for five nights per fortnight and for half of school holidays. A significant period of time in any view and as a result of agreement between the parties, he will have responsibility for making decisions concerning the day-to-day care, welfare and development of the children during these times.
For her part, the wife wishes the time the husband spends with the children to be characterised as contact. I suspect that she wishes to emphasise her view, that by dint of the time she spends with the children, she has a more significant role in their lives. In support of this position, the wife’s counsel, Mr Cassells relied on an English authority namely, A v A (Minors) [1994] 1 FAM LR (Eng) 669 where at page 672 Connell J said as follows:
“Shared orders are not appropriate in normal, conventional circumstances where parents are separated. They should only be made where there is something unusual about the case which justifies making such an order in the best interest of the child or children concerned. …”
And per Butler-Sloss L J at page 677:
“The usual order that would be made in any case where it is necessary to make an order is that there will be residence to one and a contact order to the other parent. Consequently, it will be unusual to make a shared residence order. But the decision where to make a shared residence order is always at the discretion of the Judge in the special facts of the individual case.”
In my view, there are grounds to frame the orders as a residence/residence order on a nine nights/five nights per fortnight basis as the husband seeks. The framing of the order in this way will emphasise to each of the parties their joint importance in the lives of the children concerned. One is not intended to be a subsidiary parent to the other.
The parties presented to me a Minute which contained the text of the orders regarding the arrangements for school holidays, significant festivals, parental responsibility and telephone contact to which they both agreed. I have incorporated these orders in the orders of the Court, which for the reasons provided are as set out at the commencement of these reasons for judgment. I believe that these orders are in the best interests of D and J.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 9th August 2002
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