REDEKER & CRAIG (No.2)

[2019] FCCA 3470

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDEKER & CRAIG (No.2) [2019] FCCA 3470

Catchwords:
FAMILY LAW – Children – Consideration of Equal Shared Parental Responsibility – Consideration of Equal Time.

Legislation:

Family Law Act 1975 (Cth), ss.4; 60B; 60CA; 60CC; 61B; 61C; 61DA; 65DAA; 65DAC

Evidence Act 1995 (Cth), s.140

Cases cited:

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

MRR v GR [2010] HCA 4

Applicant: MS REDEKER

Respondent: MR CRAIG

File Number: BRC 5212 of 2015

Judgment of: Judge Lapthorn

Hearing date: 13 August 2019

Date of Last Submission: 13 August 2019

Delivered at: Brisbane

Delivered on: 2 December 2019

REPRESENTATION

Solicitors for the Applicant: Browns Lawyers

Solicitors for the Respondent: Self-represented

ORDERS

(1)That all previous parenting orders be discharged.

(2)That the parties have equal shared parental responsibility for the long term care, welfare and development of the children Y born … 2014 and X born … 2014 (“the children”).

(3)That the parties do all acts and sign all necessary documents within seven (7) days of the date of these Orders to enrol the children, commencing 2020, at the A State School, Suburb C.  

(4)That until the first week of the first school term in 2021, the children live with the parties in an equal time arrangement on a fortnightly basis follows:

(a)With the father from after school (or 3pm) Monday to after school (or 3pm) Wednesday;

(b)With mother from after school (or 3pm) Wednesday to after school (or 3pm) Friday;

(c)With the father from after school (or 3pm) Friday to after school (or 3pm) Wednesday;

(d)With the mother from after school (or 3pm) Wednesday to after school (or 3pm) Monday.

(5)That from the commencement of the first school term in 2021 the children live with each parent in a week about basis from after school (or 3pm) Monday until after school (or 3pm) the following Monday.

(6)That unless otherwise agreed between the parents the arrangements in orders (4) and (5) continue during the children’s school holidays up to and including the December 2021/January 2022 holidays.

(7)That from and including the December 2022/January 2023 school holiday period, unless otherwise agreed between the parents, the children spend half of the December/January school holidays each year with each parent as agreed and failing agreement the children will spend the first half with the parent with whom they were not living for the last week of the school term immediately prior to the commencement of the school holidays.

(8)That for the purposes of implementing Order (5) herein at the conclusion of the December 2022/January 2023 school holidays the children will live with the parent with whom they were not spending the second half of the school holidays, in the first week of the resumed cycle.

(9)That all changeovers that do not occur at the children’s school are to take place at Coles Suburb B. 

(10)That the parents ensure the children attend the Suburb D Medical Centre and the Suburb E Health for their health needs, except in cases of urgency.

(11)That neither party consume alcohol beyond the legal driving limit 12 hours prior to the children entering their care and throughout the whole of the period of time the children are in their care.

(12)That neither party smoke nor allow others to smoke in the presence of the children.

(13)That neither party attend a handover accompanied by more than one person.

IT IS NOTED that publication of this judgment under the pseudonym Redeker & Craig (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5212 of 2015

MS REDEKER

Applicant

And

MR CRAIG

Respondent

REASONS FOR JUDGMENT

Introduction

1.The parents of five year old twins, X and Y are unable to agree about their future parenting arrangements and which school they should attend.

2.The parents were involved in brief parenting proceedings before this Court in 2016 which were resolved by way of final consent orders following the release of a family report.  By these orders (“the consent orders”) made on 14 December 2016 (amended 5 October 2017) the parents have equal shared parental responsibility for the children.  The children live with the mother and spend time with the father as follows:

a)In Week 1 of a two week cycle:

i)From 10.30am on Tuesday until 4.30pm on Wednesday;

ii)From 12.00pm on Thursday until 4.30pm on Friday.

b)In Week 2 of a two week cycle:

i)From 10.30am on Tuesday until 4.30pm on Thursday;

(a)From 12.00pm on Friday until 2.30pm on Sunday.

3.By way of brief background the mother is 35 years of age, lives in Suburb C and is a homemaker.  She has another child, 8 year old G, from a previous relationship with Mr H.  G has been diagnosed with Autism Spectrum Disorder and lives primarily with his mother.  The father is 43 years of age and lives in Suburb D.He works for a supermarket with shifts that for the most part see him working between 5pm and midnight on nights he does not have the children in his care.  His mother, who lives two streets away from his home, assists him in caring for the children if he has to work nights when the children are with him.   The parents live some 32kms or a 35 minute drive apart. 

4.Both parties were desirous of a change to the consent orders. The primary dispute between them was the construction of the time arrangement and number of days the children would spend with each parent.  Underlying this dispute was a disagreement as to the children’s future educational arrangements and the geographical and practical implications of same.  A number of minor disputes were also present which I will address below.  

5.The father sought orders for the children to attend B State School which is 15kms or 15 minutes travel from his home and 22km or 18 minutes travel from the mother’s residence.  The mother sought orders for the children to attend A State School Suburb C.  This school is 2km or 4 minutes travel from her residence and 30kms or 29 minutes travel from the father’s residence.[1]

[1] Exhibit C1: Distance and time estimates

Orders Sought

6.During submissions the mother amended her case and sought orders for the children to live with her eight nights per fortnight and with the father for six nights.  She sought for this time to be in block periods with each parent spending a weekend with the children.  It was submitted that this arrangement would commence in 2020.  If an equal time arrangement was ordered by the Court the mother sought for such an arrangement to commence in 2021, in a week about form. 

7.During submissions the mother through her solicitor made a number of concessions to orders sought by the father.  In summary she consented to orders being made that:

a)That neither party consume alcohol to beyond the legal driving limit 12 hours prior to the children entering their care and whilst the children are in their care.

b)That neither party smoke nor allow others to smoke in the presence or undercover with the children.

c)That neither party have more than one other person present at handovers.  

8.Additionally she sought orders for:

a)Sole parental responsibility;

b)The children be enrolled and attend A State School;

c)Non-school change overs to occur at McDonald's Suburb C; 

d)The children’s time with each parent continue in her proposed eight and six night arrangement during the April, June/July and September/October school holidays;

e)The children to spend half of the December/January school holiday period with each parent being with the mother for the first half of the 2018/2019 school holidays and the second half with the father alternating each year thereafter. 

9.The father by his Case Outline filed 6 August 2019 sought the following orders:

a)That the father and the mother do all acts and sign all necessary documents to enrol the children, namely X born … 2014 and Y born … 2014 (“the children”) as follows:

i)Enrolled into B State School for prep for 2020.

b)That orders 10, 11, 12b, 12c and 19 of the Federal Circuit Court Orders dated 14 December 2016 be discharged. 

c)That beginning on the 27^th January 2020 that the children live with their father as follows:

i)In week 1 of a 2 week cycle:

1.   From 9:00am on Tuesday until 9:00am Friday;

ii)In week 2 of a 2 week cycle:

1.   From 9:00am on Tuesday until 4:00pm Sunday. 

d)That the children attend Suburb D Medical Centre and Suburb E Health for their health needs.

e)That in respect to alcohol and smoking:

i)That neither the mother or the father are to drink 12 hours before receiving the children at changeover nor any person who receives the children at changeover;

ii)That neither the mother or the father are to consume more than the legal driving limit of alcohol whilst in the care of the children nor any person whilst in the care of the children;

iii)That neither the mother nor the father are to smoke whilst in the care of the children nor any person whilst in the care of the children.

f)That either parent can take the children away for four weeks a year with one months’ notice except on special occasions such as Christmas day, the other parents Easter weekend, the children’s birthdays and both parent’s birthdays;

g)That the children spend from 9:00am or (3:00pm if a school day) on the parents birthday until 9:00am the following day;

h)That Father’s day and Mother’s day is from 5:00pm Saturday until 9:00am Monday;

i)That all costs associated with kindergarten, school and agreed extra-curricular activities is equally shared;

j)That the mother shall not permit the children to be left in the care of Mr H;

k)That in respect to changeovers:

i)That changeovers occur at school and that non-school changeovers occur outside Cole supermarket, Suburb B.

ii)That the mother shall not permit Mr H to changeovers.

iii)That the mother and the father shall not permit partners to changeovers. 

10.The father had also sought an order that he have sole parental responsibility however he informed the Court during the hearing that he now sought an order for equal shared parental responsibility.

Material

11.The mother relied upon:

a)Her Initiating Application filed 22 November 2018;

b)The Case Outline filed 6 August 2019;

c)The Written Submissions filed 12 August 2019;

d)Her Notice of Risk filed 22 November 2018;

e)Her affidavit filed 16 July 2019; and

f)The affidavit of Mr H filed 17 January 2019.

12.The father relied upon: 

a)His Response filed 19 December 2018;

b)His Case Outline filed 6 August 2019;

c)His affidavit filed 15 July 2019;

d)The affidavit of Ms F filed 15 July 2019; and

e)His Notice of Risk filed 19 December 2018.

13.A number of documents were tendered into evidence[2].

[2]Exhibit M1:     CDT test results dated 12 July 2019

14.The Court also had the benefit of a family report prepared by Mr J dated 5 July 2019.

15.During the hearing the Court heard evidence from the parties and Mr H.  Neither party elected to place the family report writer on notice for cross examination in accordance with the trial directions.  The report was therefore admitted into evidence unchallenged.

Evidence

16.In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given.  Throughout these reasons I will refer to a number of facts.  Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.  In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[3] 

[3] Section 140 Evidence Act 1995 (Cth)

17.I am satisfied that both parents gave their evidence to the best of their abilities.  The ongoing disputes between the parents have however coloured their recollections.  The father in particular presented as rigid in his thoughts and views.  He was overly critical of the mother and clearly disliked Mr H.  I formed the view this clouded his ability to be objective.  The mother, whilst also critical of the father, was able to be more objective and made appropriate concessions against her own interest.  Where their evidence differed I preferred that of the mother.  Mr H presented as an honest and forthright witness and I accepted his evidence.

18.The parents met in … 2013 whilst they were both working for the same supermarket.  They entered a relationship some months later and first resided together in … 2014.  Prior to this relationship the mother had a long term relationship with Mr H with whom she had their son, G who is now 8 years old.  He has been diagnosed with Autism Spectrum Disorder.  The mother is his primary carer.      

19.Soon after they commenced living together the mother became pregnant with the twins.  She experienced a difficult pregnancy and was often sick.  G was living with Mr H and the mother in a week about arrangement at that time.  The father would assist in caring for G when he was living with the mother.  The parties began to experience difficulties in their relationship around this time.    

20.The twins, X and Y were born on … 2014 and are now five years old.  There were complications with the birth which both parties described as traumatic.  The mother was diagnosed with Postnatal Depression.  Their relationship continued to deteriorate after the birth and they separated in … 2015 when the twins were four months old. 

21.Following separation the mother moved back into Mr H’s residence with the twins and G and eventually renewed her relationship with him.  Her evidence was that the relationship was of a more casual nature.  She did however fall pregnant to him.  This pregnancy was terminated and the mother experienced associated medical issues following the termination.  The evidence was unclear as to when her relationship with Mr H ended however her evidence was that they have been able to maintain an excellent co-parenting relationship to date.

22.The father alleged that the mother consumed alcohol to excess.  The evidence suggests that following her relationship breakdown with Mr H she began drinking excessively on a daily basis while also taking prescribed medication.  The mother conceded that between December 2016 and June 2017 her drinking was excessive.  A concerning incident occurred in late 2016 at the mother’s home.  The mother and friends were drinking when neighbours came over due to the loud noise.  They found G in a room by himself.  The twins were in their father’s care that night.  The neighbours, concerned for G’s wellbeing, took him to their home and contacted Mr H who collected him.  In speaking to the family report writer about that night the mother said:

I guess I was trying to forget about everything…I don’t remember what happened that night, as bad as that sounds.  All I know is when I woke up in the morning G was not there… a lot of drinking had been going on.     

23.G remained in Mr H’s care for a number of weeks.  Through their solicitors the mother provided Mr H with an undertaking not to consume alcohol beyond the legal driving limited whilst G was in her care.  During cross examination the mother said she has kept to the undertaking despite her evidence that she had been drinking six beers a night for approximately six months.  She gave evidence of drinking between 4:00pm and 10:00pm, a period of time she said would leave her within the legal driving limit.  Mr H’s evidence was that he was satisfied that the mother has been abiding by the undertaking and he has no current concerns with the mother’s care of G.  He said they now have a successful parenting relationship for G.    

24.I asked the mother if she would comply with an order for her to not consume alcohol beyond the legal driving legal whilst the children were in her care.  She said she would and later consented to the making of such an order through her solicitor during submissions with the addition of not consuming alcohol to excess 12 hours prior to the children entering her care.

25.A Carbohydrate Deficient Transferrin (CDT) test result from the mother taken on 12 July 2019 was tendered which indicated that “the normal CDT, GGT and MCV do not support excessive alcohol intake”.

26.Whilst I find the mother did not exercise appropriate child focused supervision of G on the occasion in December 2016 as a result of her being adversely affected by alcohol, I am satisfied that she is no longer drinking excessively when the children and/or G are in her care and that she will comply with the order not to consume alcohol beyond the legal driving limit for 12 hours prior to and when the children are in her care.

27.The parties experienced and the children witnessed confrontations at changeovers for a significant period of time.  The mother complained that the father would interrogate her about her private life which would result in arguments.  The father remains highly critical of the mother for entering into a number relationships after her separation from Mr H.  He attempted to explore this issue during cross-examination of both the mother and Mr H.  Whilst the father is right to be concerned about the effect on the children of being introduced to a number of different partners in the mother’s household the issue appeared to take on a more personal nature for him.  He presented as being fixated on the mother’s sex life.  During cross-examination I had to redirect the father away from this issue on more than one occasion.

28.The father complained that the mother would bring other adults to changeovers who would either ignore him or behave poorly towards him.  He decided to record the changeovers.  He spoke of one changeover where the mother had brought a person with her who was consuming alcohol.  The mother conceded this had occurred.  She is no longer in a relationship with this person, separating after he wrote off her car in an accident whilst driving under the influence of alcohol. 

29.The evidence would suggest that as a result of the conflict at handovers the parents have taken to not speaking a word between them and trying to have no interaction at all during the process.  Fortunately both parents appeared to have insight into how this lack of communication sends a negative message to the children.  I am satisfied that despite their different personalities and approaches to parenting as well as their lack of trust in each other, they are sufficiently committed to ensuring their children’s best interests are met such that they will work on improving this aspect of their parenting.

Legal Principles

30.All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[4] and must consider the best interests of the child as the paramount consideration.[5] 

[4] S.60B

[5] S.60CA

31.The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6]  Section 60B(2) sets out the principles underlying those objects.  Unless it would be contrary to a child’s best interests the principles are:

a)Children have a right to know and be cared for by both their parents;

b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

d)Parents should agree about the future parenting of their children; and

e)Children have a right to enjoy their culture.

[6] S.60B lists the objects and principles for Pt VII.

32.The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[9]

[7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

[8] S.61DA

[9] S.61DA(2) & (4)

33.For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[11]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[12]  A major long-term issue in relation to a child means an issue:

[10] S.61B

[11] S.61C

[12] S.65DAC

about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

(a) the child’s education (both current and future); and

(b) the child’s religious and cultural upbringing; and

(c) the child’s health; and

(d) the child’s name; and

(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[13]

[13] S.4

34.In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]

[14] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

[15] S.65DAA(2)(c) & (d)

Determining the best interests of the children – the s.60CC considerations

35.The court is required to determine a child’s best interests by considering, so far as they are relevant, a number of factors set out in s.60CC.  In order to limit duplication I propose to group together a number of these factors.   

The children’s relationships[16]

[16] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

36.The family report writer observed each of the children to relate soundly to their parents and to have strong attachments with them.  He concluded that the children have robust and solid relationships with each parent.  He noted no anxiety in the children moving between their parents and that they showed no awareness to the parental conflict.  The report writer also noted the children have a strong bond with G.   

37.Both cases presented by the parties would see a rearranging of the time the children spend with each parent.  The mother’s proposal from 2020 is a consolidation of the time the father currently spends into block form.  The father’s 2020 proposal would see a reduction in the mother’s time from eight nights per fortnight to six and a corresponding increase in his time.  His proposal would see the children being with each parent for longer blocks of time than the current arrangement.  The children would experience the need for adjustment under either party’s proposal however they would still be able to maintain a relationship with each parent. Change is inevitable for these children as they commence their formal education which renders the current arrange impractical.  I will address this issue further below.   

Risk of harm[17]

[17] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

38.The mother alleged that the parents would argue during their relationship and would resort to yelling and screaming at each other.  She detailed three incidents of physical altercations.  An incident early in their relationship involved the father pushing her up against a wall after he found out she had contacted Mr H.  The second involved pushing her up against a door by her throat whilst she was pregnant with the children.  The third incident was said to have occurred during an argument when he grabbed her by her shoulder and screamed in her face not to walk away from him.  He denied the allegations of physical abuse but accepted that they would each yell and scream at each other.  Each party obtained final domestic violence protection orders against the other on 21 November 2017.  Whilst I am satisfied there has been a history of family violence during the relationship I find that the violence is historic and not a current issue between them.

39.The issue of the mother’s alcohol consumption was clearly a significant and real worry for the father.  There would be real risk of harm concerns if the mother was continuing to engage in excessive alcohol consumption whilst caring for the children.  The incident in late 2016 at the mother’s home was one of poor judgment that could have had serious implications for G.  The father was right to be concerned.  His inability to be objective towards the mother however clouds his ability to assess the current status of the mother’s drinking.  His lack of trust in her no doubt also colours his opinion.  I accept she has abided by the undertaking given to Mr H and am satisfied that the CDT test results are consistent with her stated position that she is no longer drinking to excess.  Her misuse of alcohol is historic.  Any lingering concerns can be addressed by the restraints on drinking she has agreed to abide by.  There is no unacceptable risk of harm to the children in this regard. 

40.Given the children have asthma the father’s concern about exposing them to cigarette smoke is legitimate.  The mother consented to the father’s proposed order with respect to smoking around the children and I will make that order.         

The child’s views[18]

[18] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

41.Given the young ages of the children the family report writer quite appropriately did not interview them to assess their views.  This factor will therefore not form part of my consideration. 

Practical difficulties[19]

[19] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

42.The parties live in close enough proximity such that there would be no practical difficulties in arranging for the children to move between both homes.  I will address the practical issues that arise in relation to getting the children to and from school later in this judgment.

Parental capacity and responsibility[20]

[20] S.60CC(3)(f): The capacity of: (i)       each of the child’s parents; and (ii)  any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs.

43.The mother has no concerns about the father’s ability to provide for the needs of the children.  Nor do I.

44.Whilst the father has been critical of the mother he does not suggest she is unable to feed, clothe and care for the children.  Issues surrounding smoking in or near the children and alcohol consumption have been addressed by the mother’s consent to be bound by injunction.

45.Despite their disagreements there can be no doubt that both parents love and care deeply for their children and are willing and able to provide for all their needs.

Presumption of Equal Shared Parental Responsibility

46.The mother submitted that the presumption of equal shared parental responsibility does not apply given the history of family violence.  I accept that submission.  However, it does not necessarily follow that upon making such a finding a sole parental responsibility order would be made.  Ordinarily it would be in children’s best interests for parents to share the decision making for important matters together.  When parents bring different views to any consideration and arrive at a joint decision, children benefit from the care that is taken in making the decision.  This of course requires parents to have at least some ability to work together despite their differences.  In this case the parents have had real difficulties in communicating and the father is at times overly critical of the mother however I am not satisfied they would be unable to work together to make the important decisions for the children.  Whilst it could be argued, as the mother did, their inability to agree to a school for the children is indicative of their inability to reach agreement I am not satisfied that this issue is indicative of their overall ability to communicate.  In my view the parents are polarised in their choice of school because of their desire to obtain their preferred live with orders.  Once this issue has been determined they are likely to be better focused on working together in parenting their children.  In saying that I am not dismissive of the mother’s complaint.  I have no doubt that she has at times experienced great frustration with the father’s more ridged approach and has grown tired of his criticisms.  Despite this they have been able to work together in making decisions for the children albeit with some friction.  The parents have been able to attend upon the children’s doctors together.  Whilst their approaches have not been entirely harmonious they are clearly able to put aside their differences when the children’s wellbeing is at stake.  Mr J was also able to speak with the parent’s jointly on this issue. 

47.I accept the opinion of the family report writer that an order for sole parental responsibility is not an answer to the parents’ problems.  He formed the view that despite some difficulties the parents will be able to make decisions together.  In his view: limiting the responsibility of one parent in preference to the other is not conducive to an equitable arrangement or to future communication.

48.I will make an order for equal shared parental responsibility. 

Consideration of Equal Time or Substantial and Significant Time

49.Having made a finding that an order for equal shared parental responsibility is in the best interests of the children I am required to first consider if an order for the children living with the parents in an equal time arrangement is also in their best interests and reasonably practicable.

50.At first glance the parents’ poor communication and different parenting styles might suggest that an equal time arrangement would be unworkable.  In this case however the parents have been able to make the current arrangement work in a way that benefits the children.  For much of their young lives the children have been living in a form of shared care although not precisely an equal time arrangement.  The current arrangement sees the children live with the mother for eight nights in a fortnight and with the father for six.  The arrangement is set out in paragraph 2 of this judgment.  The mother wanted an eight/six arrangement to continue but to be reconfigured to give the children longer block periods with each parent.  The father also sought an eight/six arrangement but for the children to live with him for the eight nights.  He sought to split the arrangement so that the children were not away from either parent for too long.

51.I have come to the conclusion that an equal time arrangement is in the best interests of the children given the significant role each parent has played in the care of them to date.  In my assessment despite their difficulties the parents are able to make such arrangement work.  Although they do not live in the same suburb they are not too far apart to make equal time impracticable.  In any event the practicality issues would also apply to either parent’s proposal. 

52.Although a move to equal time would see the children spend less time in the mother’s household and therefore less time with their brother I am satisfied that a reduction of just one day will not adversely affect the sibling relationships nor would the relationships between mother and children be negatively impacted.  The children would benefit from having an extra day with the father.

53.Because the children have for a long time been living with each parent in a way that has not seen them spend long blocks of time away from a parent, I am of the view that it would not be in their best interests to move to a week about arrangement straight away.  The current arrangement is a one/one/one/four/two/one/two/two arrangement over the fortnightly cycle.  The children are not used to being away from any one parent for a period longer than four nights.  To help them adjust it would be preferable for them to spend a year living with the parents in a fortnightly cycle of two/two/five/five nights before then moving to a week about arrangement.  The reason for a two and five night arrangement is so that the children can spend a full weekend with each parent.  This form of transition will enable them to settle into their school and adjust to the extra time with the father and the corresponding reduction in time with the mother.  The number of handovers would be reduced by half and could take place at school.  This would reduce the prospects of conflict experienced by the parents at the handovers.  After implementing this arrangement for a year the children should be ready to spend block periods of seven days with each parent.

54.The father sought an order that the parties be at liberty, with appropriate notice, to take the children on a holiday for up to four weeks once a year.  I am not satisfied that he made out a case for that.  Once the children have settled well and truly into a week about arrangement it would be appropriate for them to have half school holidays with the parents.  I will make orders that, unless otherwise agreed by the parents to the contrary, the children continue with the live with arrangements during the school holidays in 2020 and 2021.  This would see the children living with each parent for half of the holidays at the ends of terms 1, 2 and 3 because they will be in a week about arrangement.  Given their young ages this should continue for the long holidays at the end of term 4 in 2021 but from the long holidays at the end of 2022 the children should be able to spend up to three weeks with a parent at a time.  The week about cycle should resume at the end of the school holidays with the children spending the first week with the parent they were not with during the second half of the long school holidays.

55.I will order accordingly.

School Issue

56.The mother would like the children to attend A State School in Suburb C, which is the same school that G attends.  The father however would like the children to attend the B State School.  Both parties agreed that exhibit C1 was accurate with respect to the distances and times between each residence and their proposed schools. 

57.Neither party filed any evidence on which I could give weight as to the facilities available at the respective schools.  The father believes that Suburb B School has smaller class sizes and a better reputation.  The mother is not impressed with Suburb B's NAPLAN results.  I cannot give any weight to those beliefs.  There is no evidence to suggest that either school would be unable to meet the needs of these children.

58.In support of his choice of school, the father argued that B State School is across the road from the children’s kindergarten and they are familiar with the area and have established friendships.  He said his support network is based in the Suburb D area which is closer to Suburb B than Suburb C and that the school in Suburb B is about half way between both homes.  He said he would have to travel about 40 minutes to and from the school in Suburb C.  These arguments are both valid and relevant.

59.The mother’ arguments were also valid.  She submitted that the children should attend the school in Suburb C as G already attends this school which is a short distance from her home.  She was concerned that if the children were attending the school in Suburb B she would need to attend two schools and travel 30 to 40 minutes each morning and afternoon.  G is currently receiving special education treatment at Suburb C and has a good relationship with his teachers.  It is not the mother’s intention to move from Suburb C or remove G from his current school in light of the assistance he receives.  She said the children are already familiar with the school having accompanied her to collect G and attend school events with him.  Likewise she has established rapport with the teachers at the school which she believes will assist in a transition for the children. 

60.The report writer said it was not possible to make a recommendation for a school based on the level of educational quality.  However, he did otherwise opine:

[101] I do think there is reason for Ms Redeker’s argument that unless she were to move, it would be very difficult for her to continue having the children at different schools, and the transport for her would be almost impossible, given G’s needs. 

61.Mr J assessed the bond between all three children:

[99] …there is also clearly a bond between them and their brother G.  Whilst G does have a developmental problem, as per his autistic spectrum disorder, this appears to have been compensated for and adjusted between the children.

62.Whilst I well understand and have some sympathy for the father’s argument about a school equidistant between the two homes, on balance, I find that the children’s best interests would be served by them attending the same school as their brother.  I will order accordingly.

Other Issues

63.The father made submissions regarding the children’s health care providers and sought an order that they be primarily treated by the Suburb D Medical Centre and the Suburb E Health Centre as the children’s medical history is known to the doctors at these facilities.  The mother told the report writer that sometimes she has had to take the children to a medical practice closer to her home because the children’s needs are more immediate such as an asthma attack.  I am satisfied that the children should attend the same medical practice as much as possible so that they will benefit from being treated by doctors familiar with their health needs but at times it may be necessary to attend a more convenient practice.  I propose to make an order that will accommodate this.

64.The father sought an order that Mr H not to be present at any changeover.  It is clear that the father does not like Mr H.  Once the children start school next year there is unlikely to be many handovers away from their school which should alleviate any concerns the father has.  In any event he has not established any necessity for the order.  He also sought an order in relation to the mother not bringing any of her partners to changeover.  There have been problems in the past but for the same reason as I indicated for Mr H, I will not make that order although the parties agreed to an order limiting the number of accompanying persons to one.

65.The mother wanted handovers that do not take place at school to be at McDonald's Suburb C whereas the father preferred Coles at Suburb B.   The father’s proposal is fairer as it will see the travelling shared between the parties.

66.For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date:  2 December 2019

Exhibit C1:     Distance and times estimates
Aide Memoir:   Calendar time proposals

S.60CC(3)(b): The nature of the relationship of the child with: (i)  each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i)  either of his or her parents; or (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order;  ii)  The circumstances in which the order was made; iii)  Any evidence admitted in proceedings for the order; iv)  Any findings made by the court in, or in proceedings for, the order;  v)  Any other relevant matter.

S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.

S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents