Rapp & Rapp
[2007] FMCAfam 720
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAPP & RAPP | [2007] FMCAfam 720 |
| FAMILY LAW – Children – interim arrangements for care – presumption of equal shared parental responsibility applies – whether shared care or substantial and significant time is reasonably practicable or in children’s best interests. |
| Family Law Act 1975, ss.60CA; 60CC; 61DA; 65DAA |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS RAPP |
| Respondent: | MR RAPP |
| File Number: | ADC1593 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 13 September 2007 |
| Date of Last Submission: | 13 September 2007 |
| Delivered at: | Darwin |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Martin |
| Solicitors for the Applicant: | Howe Martin |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Moody Rossi |
ORDERS
This matter be listed for final hearing before Federal Magistrate Brown on 28 and 29 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
The applicant file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing 28 days prior to the hearing date.
The respondent file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing 14 days prior to the hearing date.
Pursuant to section 62G of the Family Law Act 1975 a family report be prepared in this matter by a family consultant to be nominated by the Director of Family Dispute Resolution Services at Adelaide. The report to address the following matters:
(a)any views expressed by the children and any factors such as the children’s maturity with may be influencing such views;
(b)the nature of the relationship between each of the children and the parties herein;
(c)whether the parties are likely to sustain a shared parenting arrangement for the children and whether such an arrangement is likely to be in the best interests of the children concerned;
(d)any other matter which the family consultant deems appropriate.
The report ordered pursuant to order (5) hereof be released to the parties on or before 18 January 2008.
UNTIL FURTHER ORDER OR OTHER ORDER
The parties have equal shared parental responsibility for the children M born in 1992, K born in 1994; A born in 1997 and N born in 2000
The children K, A and N live with the mother.
Order (1) of the orders of 11 July 2007 continue so far as arrangements for the care of the child M are concerned.
The children K, A and N spend time with the father as follows:
(a)during school terms from 5.00 pm Friday until 7.30 pm the following Sunday of each week;
(b)for half of each school holiday period which half is to be agreed between the parties and failing agreement is to be the first half in each year ending with an odd number and the second half in each year ending with an even number;
(c)in the event that the children are not in the father’s care on their respective birthdays or on his birthday the children are to spend four hours with the father in the event that these occasions fall on a school day and a period of six hours if they fall on a non school day. The specific hours to be agreed between the parties and failing agreement to be 4.00 pm and 8.00 pm in the event that it is a school day and between 2.00 pm and 8.00 pm in the event that it is a non school day;
(d)order 8 (b) hereof is suspended in respect of the Christmas period of each year so that the children spend equal periods of time with each of their parents, the times to be agreed between the parties and failing agreement to be from 6.00 pm on Christmas Eve until midday on Christmas Day with the mother in 2007 and each alternate year thereafter and from 6.00 pm on Christmas Eve until midday on Christmas Day in 2008 and each alternate year thereafter in 2008 and each alternate year thereafter;
(e)at any other times as may be agreed between the parties.
In the event that the children are in the care of the father on their respective birthdays and the mother’s birthday the children are to spend time with the mother on these occasions at times to be agreed between the parties and failing agreement to be between 2.00 pm and 8.00 pm.
The mother is to deliver the children to the father’s home at the commencement of each period of time the children are to spend with him pursuant to these orders.
The father is to collect the children from the mother’s home at the conclusion of each period of time the children spend with him pursuant to these orders.
Neither party denigrate the other in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Rapp & Rapp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC1593 of 2007
| MS RAPP |
Applicant
And
| MR RAPP |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Rapp and Ms Rapp are the parents of four children: M born in 1992, K born in 1994, A born in 1997 and N born in 2000.
These proceedings are concerned with arrangements for the care of these children until the parties competing applications can be heard on a final basis. The final hearing has been scheduled for the first part of 2008. The task for the court is to determine what are the best arrangements for the children until that final hearing takes place.
M has special needs. He suffers from a semantic pragmatic disorder. He currently lives with each of his parents on an approximately equal basis. Neither party wishes to change this arrangement.
The parties began to live together in January 1985 and married in April of 1990. They separated on 14 January 2005, when the mother left the parties’ former family home at Wxxx. She now lives in Sxxx, with her new partner Mr W. M is attending Sxxx High School. The three younger children attend Wxxx Primary School.
Relations between the parties have deteriorated since they separated. Issues have arisen between them regarding the division of marital property and the payment of child support. Both parties are currently under some financial pressure.
The children each enjoy a number of extra curricular activities and these are expensive. In addition, M has some medical needs, particularly speech pathology. How M’s needs are to be catered for and how the children’s various activities are to be paid for causes friction between the parties.
Both the father and mother work in the Education Industry. Currently Mr Rapp is working part-time. He suffers from depression and anxiety. He currently receives worker’s compensation payments to make up the balance of his salary.
Ms Rapp began these proceedings on 6 June 2007. At that stage, she only sought orders in respect of the division of the parties’ marital property and for a departure order in respect of child support. Mr Rapp responded to the application on 9 July 2007. At that stage he raised issues to do with the care of the children.
On 11 July 2007, the parties agreed on some temporary orders in respect of the care of the children. They agreed that M should live with his parents for approximately equal periods of time each week. In regards to K, A and N, it was agreed that the children would live with their father from 5:00pm Friday until 7:30pm the following Sunday of each week and at other times, in school holidays, as the parties agreed from time to time.
It is the father’s position that he is a competent and loving parent, who has been closely involved in caring for the children, both before and after the parties separated. In such circumstances, he says that all four children should live with their parents in an equal shared care arrangement.
The mother does not agree. She asserts that, due to his illness, the father will not be able to care for all four children, at the same time, for extended periods. She says that for the last few years, Mr Rapp has lacked energy and is not able to attend to routine domestic chores. As a result, K and A look after N, when they are with their father and this is not appropriate.
It is also the mother’s position that the father is fixated with financial matters between the parties and is unable to restrain himself from discussing these issues with the children. This is placing them under emotional pressure and is detrimental to them.
It is Ms Rapp’s position that the children, particularly K and A, are happy with the current arrangements and do not want to spend more time with their father. She does not want to force them. At present, she asserts that the children are often upset and confused, when they return home from their father’s household. Accordingly, she does not believe that a shared care arrangement would be in the children’s best interests.
Prior to the final hearing, she wishes the court to take steps to ascertain whata are the children’s views about the shared care arrangement. By implication, she believes it would be imprudent for the court to move too hastily in changing the current arrangements without taking steps to find out what are the children’s preferences regarding their living arrangements.
The father takes issue with many of the mother’s criticisms against him. He asserts that he was closely involved in caring for the children until February 2007. He says this arrangement broke down when the Child Support Agency reviewed arrangements for the children’s financial support.
In this context, he asserts that that mother unilaterally decided to change the care arrangements for the children. By implication, he asserts that the mother is motivated more by her financial interests than a consideration of the best interests of the children. He also denies that his depressive illness constitutes any impediment to the proper care of his children.
I am satisfied that both parties are loving and interested parents. However, the emotional topography between them is difficult. Sadly, the parties are unable to agree on appropriate care arrangements for the children. It is regrettable that I must determine the matter.
I must determine the case in artificial circumstances. Not having seen either of the parties in the witness box, I am unable to make any assessment of their reliability as witnesses. At this stage, there is no independent assessment of the children’s psychological needs or wishes. In addition, I have no expert medical evidence before me regarding Mr Rapp’s medical condition. Accordingly, at this stage, it is difficult, if not impossible, for me to make findings of fact about the significant issues in dispute between the parties.
I am likely to be in a better position to make the necessary findings of fact after the final hearing, when there will be more time to evaluate all the necessary evidence. Until that time, the mother urges the court to adopt a cautious approach. On the other hand, the father asserts that full effect should be given to the legal principles enunciated in Part VII of the Family Law Act.
The legal principles to be applied
The starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their children [Family Law Act section 61DA]. In this case, given the close involvement of both parents in the lives of the children concerned and the absence of any allegations of family violence or neglect, neither party asserts anything other than that the presumption should be applied.
The presumption itself does not determine the extent of time the childen concerned spend with each of their parents. This is determined by section 65DAA. The court is required to consider firstly whether the children should live with their parents for equal periods of time and if this is not considered to be either likely to be in the children’s best interests or reasonably practical, the court is then required to consider the children living with each of their parents for “substantial and significant” periods of time.
The Family Law Legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
In this case, issues of abuse and family violence do not arise. Accordingly, the issue of the desirability of the children having a meaningful relationship with both their parents comes to the fore.
Mr Rapp points to this consideration and the general theme of the legislation in support of his application for a shared care arrangement for K, A and N.
The additional considerations are more numerous. [Family Law Act section 60CC(3)]. The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [See Goode & Goode (2006) FLC 93-286]
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
In this case, Mr Rapp points to the fact that the parties’ homes are very close together. It seems clear that there has been a shared parenting arrangement in respect of M for some time. If this is possible and beneficial for M, Mr Rapp argues it is also possible and by implication beneficial for the three younger children.
Ms Rapp points to different aspects of section 65DAA(5). She argues that it is self apparent that the parties do not communicate well with one another – otherwise they would not be in court asking for the court to make this decision. It is also her position that the shared care arrangement, advocated by the father, is likely to have adverse consequences for K, A and N, particularly if they feel they have not been consulted and their views acknowledged.
Relevant factors under section 60CC
I am satisfied that all four children have a meaningful relationship with both their parents. The children spend a lot of time with both their parents. The area of dispute is that Mr Rapp wants to spend more time with the children than he does currently. For reasons already provided, the other primary consideration is not relevant.
I have no clear evidence about the views of the children. [s.60CC(3)(a)][1] I am also concerned that it may be difficult for K, A and N to express any concluded view, given the high level of conflict between their parents. The most suitable and most likely accurate means of assessing the children’s views is an independent psychological assessment. This is not currently to hand.
[1] Hereafter the letters in square brackets refer to the relevant additional factors in section 60CC(3). If I have not referred to a specific factor I do not consider that it warrants specific attention in these interim proceedings.
The parties are in dispute about the nature of the relationship between the three younger children and their father. [(b) (f)] On the mother’s case, the relationship is fraught with emotional difficulties and the children are perplexed by the father’s behaviour.
Mr Rapp does not accept how he has been painted by the mother. On his case, his illness is well managed and the relationship between him and the children is a positive one. At this stage of the proceedings, I am unable to resolve this issue definitively.
The mother alludes, in her material, to her desire and belief that a more fluid relationship will arise between the children and their father organically and in time. [(c)] It is her position that she is supportive of the children’s relationship with their father, in somewhat difficult circumstances, but does not want the issue to be forced.
The father does not agree. It is his position the mother is unwilling to facilitate and encourage the appropriate level of relationship between him and K, A and N and puts her own needs before those of the children.
It is difficult to form a concluded view about this issue. However, notwithstanding her reservations, the mother has ensured that the children do spend regular periods of time with their father. Again, the dispute between the parties is on the extent of time rather than its intrinsic quality. I am concerned that both parties have allowed financial issues to become enmeshed with their disagreement about how the children may best be cared for.
It is the mother’s position that the court should maintain the status quo in regards to the arrangements for the care of the children until more evidence is available to elucidate their views and the nature of their relationship with their father. [(d)]
However, the Full Court has disallowed any general principle that a status quo, in respect of arrangements for the care of children, should be preserved at the interim stage. In the Full Court’s view, as this would be contrary to the structure of the Act, which emphasises the desirability of equal or significant involvement by both parents in the care arrangements for their child, where appropriate. [See Goode & Goode (supra) at 80,901].
The mother is critical of the father’s capacity to provide for the children’s emotional and day to day physical needs. [(f)] This is one of the central issues in dispute between the parties. The mother is not medically qualified and calls no expert medical evidence to support her assertion that the father’s depression impacts upon his ability to care for four children of the ages of the children concerned in this case. The father rigorously refutes any suggestion that his illness impacts upon the children at all.
The mother points to her observations of the former family home, which she asserts is rundown and unkempt. She also relies on reports she has received from the children regarding what goes on in the father’s household. The father refutes these allegations. Again, I am not in a position to resolve them definitively at this stage.
It is common place that parties, in vehemently disputed proceedings, emphasise the past failings of their former partner and minimise their own. It is also common for the comments of children to be taken out of context and distorted for perceived strategic advantage in such proceedings. Accordingly, I must be cautious about the mother’s assertions but, on the other hand, bearing in mind the paramountcy of the children’s best interest, I cannot simply dismiss these concerns.
Conclusions
The presumption of equal shared parental responsibility applies in this case. Accordingly, I must consider first the children spending equal periods of time with both their parents and, if this is not appropriate, then consider the children spending substantial and significant time with both their parents.
At present, Mr Rapp is only spending weekends, during term time, with K, A and N, as well as unspecified periods of time in school holidays. This is not substantial and significant time, as it is not time which is calculated to allow Mr Rapp to be involved in their daily routine. [Family Law Act section 65DAA(3)].
Given the structure of the Act, I am required to give significance to the likely benefit of the children having a meaningful relationship with both their parents. The applicable legislation emphasises the desirability of both a child’s parents being involved, as much as possible, in all forms of their child’s life, so that the child concerned has a balanced relationship with both his or her parents, not one which is artificially confined to weekends or holidays.
The rationale seeming to be that one parent should not feel that he or she is in a position of pre-eminence over the other or perhaps more relevantly in this case that one parent feels subservient. To use the dichotomy of the old legislation one was a “residence” parent and the other a “contact” parent. Such distinctions are not likely to be of assistance to help the children of separated parents to feel that both their parents are involved in their lives in a meaningful way.
However, notwithstanding the importance of these principles, a “one size fits all” approach is not necessarily appropriate for every family. The additional considerations, enumerated in section 60CC(3), require the court to take an individual approach to each case and, at both the interim and final stage, consider the criteria enumerated where applicable and make findings if possible. This is in order to ensure that the orders which are ultimately made serve the best interests of the child or children concerned. [Family Law Act section 60CA].
The unknowns for the Court, at this stage, are the views of the three younger children, particularly K and A and what is shaping those views, if anything. In particular, whether the father is placing the children under emotional pressure and is not able to provide for their day to day needs.
I do not view these concerns as unduly abstract or nebulous. In my view, the concerns expressed by the mother are significant and not easily dismissed. I would expect a child of the age of K to be able to express a clear preference. Such a preference is likely to be highly determinative in the outcome of the case. I do not have that view from K or indeed any other of the children, from an independent and impartial source, as yet.
In my view, this dictates a more cautious rather than experimental approach be taken, particularly as the case can be heard comparatively soon and there is no suggestion that the father is not currently having a meaningful relationship with all four children. Although, from his perspective, it is not the optimal relationship, which the legislation envisages.
In addition, in my view, although there are few practical impediments to a shared care arrangement [(e)] – the parties live close together and both enjoy flexible working hours – there are many subtle emotional barriers to it, not the least of which is the parties’ relationship with one another, which is marked by conflict and suspicion. The three younger children will have to regularly accommodate a transition between two households which are at odds. Again, in my view, this militates in favour of a cautious rather than experimental approach.
At the present time, the parties do not trust one another. They have radically different views about M’s special needs and how they should best be treated. They do not communicate well. It is axiomatic from these proceedings that they currently have no capacity to resolve disputes between them regarding the care arrangements for the children.
For all these reasons, I am not currently persuaded that a shared care arrangement would be either in the children’s best interests or reasonably practicable. I am gravely concerned at the potential impact of such an arrangement on K, A and N, particularly when their views have not been appropriately canvassed.
I must then consider a regime whereby the children spend substantial and significant periods of time with their father. It is clear that this means more time than just time on weekends and school holidays. However, perhaps unusually, K, A and N are currently not spending any weekends with their mother. Each of their weekends is spent with the father.
Although the current arrangement can be criticised for not enabling the father to have a more diverse and rounded relationship with the three younger children, it cannot be said that he is not seeing them regularly or for extended periods of time. I am satisfied that K, A and N can maintain their relationship with the father under the current regime.
It is a common occurrence for older children, particularly of the ages of K and A to express a preference to live predominantly in one household rather than move between two. In this case, given that K in particular is over thirteen years of age and A is around ten and a half, it is in my view likely to be important to any consideration of their best interests that their views be properly canvassed before any significant decisions regarding their care are made and that once canvassed those views are given real rather than token weight.
For these reasons, I am not persuaded that a regime whereby the three younger children spend substantial and significant time with their father is likely to be in the children’s best interests at this interim stage. In addition, for the reasons I have already provided, I am concerned that there will be difficulties putting such a regime into place at this stage, particularly given the significant level of tension between the parties and their communication difficulties. I am concerned that these factors may exacerbate the potential for the three younger children to be placed under psychological stress. Again these are matters which militate in favour of a cautious rather than experimental approach being taken at this stage.
However, at this stage, I think it is likely to be in K, A and N’s best interests that clear orders be made in respect of the school holidays between now and the final hearing. Given my findings about the parties’ relationship with one another, it seems highly probable that they will have difficulty in agree how the children should spend the holidays. It is also inappropriate that the children should form any sort of impression that they are the fulcrum on which the dispute between their parents turns. I will make orders that the children spend equal periods of time, during school holidays, with each of their parents.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 17 September 2007
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