Richards and Richards
[2010] FMCAfam 541
•16 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RICHARDS & RICHARDS | [2010] FMCAfam 541 |
| FAMILY LAW – Parenting – should children spend equal time with each parent or live with the wife and spend significant and substantial time with the husband – consideration of best interests and whether equal time is “practical” pursuant to section 65DAA of the Family Law Act 1975. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 70NEC |
| MRR v GR [2010] HCA 4 |
| Applicant: | MR RICHARDS |
| Respondent: | MS RICHARDS |
| File Number: | MLC 8918 of 2007 |
| Judgment of: | Bender FM |
| Hearing date: | 20 May 2010 |
| Date of Last Submission: | 20 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 16 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Voigt Lawyers |
| Counsel for the Respondent: | Ms Smallwood |
| Solicitors for the Respondent: | Mason Sier Turnbull |
ORDERS
The parties have equal shared parental responsibility for their children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”).
Upon the husband residing permanently at Property S, [M], [X] and [Y] shall live with each of the parties on a week about basis from after school Friday during school term.
Until such time as the husband resides permanently at Property S, [M], the living arrangements for [X] and [Y] during school term shall be in accordance with order 3 of the orders made on 8 February 2010.
The final orders numbered 4 to 15 of the orders made on
8 February 2010 shall remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Richards & Richards is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8918 of 2007
| MR RICHARDS |
Applicant
And
| MS RICHARDS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter sees the continuation of the lengthy ongoing litigation between the parties in respect to the arrangements for their children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) that first commenced in 2005.
On 12 June 2007 the parties entered into final consent orders (“the June 2007 orders”) that set out the arrangements for [X] and [Y]. Those orders provided for a week about arrangement whereby [X] and [Y] were to live with each of their parents from Friday to Friday. The orders also made provision for holiday and special occasion arrangements.
This arrangement was subject to the husband living in the Eastern suburbs when the children were with him. In particular, the June 2007 orders provided as follows:
12.THAT during the periods when the children are in his care, the Husband and the children shall on evenings preceding school and/or kindergarten, stay overnight in the Eastern suburbs save as follows:-
(i)on exceptional or special occasions when the husband and the children shall be permitted to stay in the Husband’s [B] residence; and
(ii)on Sunday evenings, should the husband intend to stay in [B], he shall give the wife notice of same by
e-mail no later than 7.00pm on the preceding Thursday, in which event the Husband’s residence period with the children shall be suspended at 7.00pm Sunday, at which time the Wife shall collect the children from the Husband at his [B] residence,
(iii)and resume at the commencement of school/kindergarten the next day.
13.THAT for the purposes of paragraph 12(i) hereof “exceptional or special occasions” shall be defined as:-
(i) Carols in the Park at [omitted];
(ii)the children’s birthdays and the Husband’s birthday falling during the Husband’s care period; and
(iii)illness or injury (supported by medical certificate to be provided forthwith);
in which case the Husband shall deliver the children directly to school or kindergarten the next morning.
15.THAT in the event that the parties are unable to each agreement as to the choice of school for [Y] pursuant to paragraph 14 hereof before 28 July 2007, Dr. L, Clinical Psychologist, be jointly engaged by the parties to prepare a report, and make recommendations about, [Y]’s schooling from 2008 onwards.
16. THAT for the purposes of paragraph 15 hereof:-
(a) Dr. L’s fees be borne equally by the parties;
(b)Dr. L be provided with all reports prepared in respect of [Y], including those reports of Ms. L, Ms. S of the [E] Centre and [Y]’s speech pathologist and any other treating professional;
(c)Dr. L be authorised to interview and/or confer with [Y]’s current teachers (both at [E] Centre and [H] Kindergarten), Ms. L and Ms. S;
(d)Dr. L be invited, and encouraged, to visit each party’s nominated school(s) and interview the relevant staff of same with particular emphasis on the school’s ability to assist and manage [Y]’s autism and future education; and
(e)Dr. L’s report be released no later than 31 August 2007.
17.THAT for the purposes of paragraph 12 hereof, the reference to the “Eastern suburbs” shall be those suburbs in the [V] - [K] area.
These orders were made as after the parties separated, the husband remained in the former matrimonial home in [B] and the wife and children moved to [K], a travelling distance of over one hour.
On 27 May 2009 the husband filed an Application seeking to have orders 12, 13, 15, 16 and 17 of the June 2007 orders discharged.
In her Response filed 29 June 2009, the wife sought to have the husband’s Application dismissed. She also sought to have the orders whereby [X] and [Y] live week about with their parents set aside and orders made that they live with her and spend time with the husband each alternate weekend from after school Thursday to before school Monday. The wife also sought to “clarify” holiday and special occasion arrangements.
The matter was listed for final hearing on 8 February 2010. On that date final orders were made by consent in relation to holiday and special occasion arrangements. The issue of what the living arrangements for [X] and [Y] during school terms would be was adjourned to 20 May 2010. Orders were also made which discharged orders 2 and 19 of the June 2007 orders and interim orders were put in place which provided for [X] and [Y] to live with the husband each alternate week from after school Wednesday to before school Monday (in [B]) and otherwise that they live with the wife.
The notation to the orders of 8 February 2010 was as follows:
AND THE COURT NOTES:
A.That the wife has agreed to orders 1 and 3 herein on the basis that the husband has indicated in open court that he is forthwith establishing a permanent residence in proximity to the children’s school.
At the final hearing of this matter the court was advised the husband had purchased a property at Property S, [M] (“Property S”) and settlement would take place on 1 October 2010.
The husband seeks that orders be made for the children to return to living on a week about basis with each of their parents upon settlement of his purchase of Property S on the basis he and the children would then be proximate to their schools.
The wife seeks orders that the interim “9/5” arrangement become the final arrangement for the children. She argues that as Property S is some 36 kilometres or 40 minutes from [X]’s school, it was not sufficiently proximate to her school to make equal time practical or workable.
Background
The husband was born [in] 1964 and is 45 years of age. He is an [occupation omitted]. He is currently in a relationship but he and his partner are not living together.
The wife was born [in] 1965 and is 45 years of age. She is employed on a part-time basis as a [omitted]. She has not re-partnered.
The parties married [in] 1997 and separated on 4 April 2005. They divorced on 20 September 2007.
The parties’ post-separation relationship has been marked by an ongoing inability to communicate. Their capacity to work
co-operatively as separated parents has been and is extremely limited.
Proceedings as to the living arrangements for [X] and [Y] commenced in December 2005. To assist in trying to resolve matters between themselves in relation to [X] and [Y], the parties attended upon Dr L, Consultant Clinical Psychologist. Dr L assisted the parties in resolving issues as to which schools [X] and [Y] should attend, as well as the living arrangements that would best serve the parties. Dr L also prepared some four Family Reports that were relied upon in the previous litigation before this court.
[Y] has mild autism that is understood and well managed by both parents. They were unable to agree as to the appropriate school for [Y] and in the June 2007 orders the parties agreed to engage Dr L and be guided by his recommendations as to [Y]’s schooling.
Dr L recommended [W] School in [V] and [Y] has been enrolled at that school since 2008. [X] attends [K] School. The two schools are
18 kilometres apart.
On 30 May 2008, the wife issued a Contravention Application in which she alleged the husband had committed nine breaches of order 12 of the June 2007 orders in that the husband had remained in the former matrimonial home in [B] with the children on a school/kindergarten night.
The wife’s Contravention Application was heard by Federal Magistrate Turner. After hearing the matter His Honour found the husband to have breached the orders without reasonable excuse and ordered the husband to enter into a Bond pursuant to section 70NEC of the Family Law Act 1975 (“the Act”) for a period of 12 months.
In the current Application before the court, the husband was initially seeking orders that would allow [X] and [Y] to reside with him in the [B] property when living with him pursuant to the June 2007 orders.
This was opposed by the wife who sought orders that the living arrangements for [X] and [Y] vary so that they live with her and spend time with their father each alternate weekend from after school Thursday to before school Monday.
When the matter first came before me on 1 July 2009 orders were made that the parties attend upon a Family Consultant (not to be Dr L) for the preparation of a Family Report. The parties agreed to attend upon
Mr P.
Mr P released his Report on 10 November 2009. In paragraphs 42 and 43 of his Report Mr P stated:
42.Ultimately, the arrangement they have is not tenable, and in my view should be changed. Two obvious solutions present themselves. The first is that Mr Richards simply relocate, move closer to where the children live and where their school and social activities belong. This is where the children will live, it will be their social and educational hub, and life will be significantly easier for them if he lives close.
43.Understandably, he may not wish to do so. In that event, my recommendation is that there should be a change in the living arrangements such that he spends 5 nights with the children in a 14 night cycle, and that he reside with them at his home in [B]. Whilst this is not an ideal situation, it is a compromise that I think will be tolerable for the children. They still see their father for 5 continuous nights, they will see him at his home in [B], and they will no longer have to reside in a serviced apartment.
The parties were unable to agree to the arrangements for [X] and [Y] for Christmas 2009 and over the long summer vacation. This issue came before me on 14 December 2009 where interim orders were made as to Christmas and the 2009/2010 long summer vacation arrangements.
As noted previously in this judgment, when the matter came before the court at the time of the final hearing, the parameters of the dispute had altered. The issue for determination was what living arrangements for [X] and [Y] would be in their best interests in light of the husband’s move to Property S.
The Evidence
The husband’s proposal
The husband is seeking orders that upon him moving into his newly purchased property at Property S on 1 October 2010, the arrangements for [X] and [Y] return to an equal shared care arrangement on the basis that they live with him and the wife on a week-about basis.
It was the husband’s evidence that Property S is a short five minute drive to [Y]’s school and then a further 30 minute drive to [X]’s school.
The husband gave evidence that he decided to move having read
Mr P’s Report on the understanding that he needed to be in close proximity to [X] and [Y]’s schools and their social activities.
It was the husband’s evidence that he only considered purchasing properties in the [M] and [G] areas. He offered no explanation as to why he restricted himself to those suburbs.
The husband conceded that Property S is not close to [X]’s school and that there was an option for him to look at purchasing a property in an area between the two schools in order to be able to be proximate to both of them.
It was his evidence that Property S would be close to [Y]’s school and the social activities for both children that have been put in place in that area. It was his evidence that [X] and [Y] do athletics in summer in [suburb omitted] and they belong to the [suburb omitted] Little Athletics Club. [Y] plays football for [club omitted] and in earlier times both children had tennis lessons in [V]. It was his evidence that all these activities are within five minutes of Property S.
The husband conceded that the children also do athletics with [suburb omitted] Little Athletics and that for some time now the children’s sporting and social activities have been separated with them doing and being involved with different clubs and social groups depending upon which parent they are living with.
The husband gave evidence that he had recently entered into a relationship with a teacher who had formerly taught [Y] but who was no longer at the school. She lives in [M].
When questioned as to the issues that [X] raised with Mr P, and in particular her desire to be able to more easily socialise with her friends after school and whether that would be possible from [M], it was the husband’s evidence that it was not ideal but that he was open to ensuring that she could socialise with her friends after school and that he would accommodate her wishes to do so.
It was the husband’s evidence that when choosing the Property S property, he was endeavouring to find a house that would meet [X]’s needs now, when she starts high school and when she goes to university.
It was the husband’s evidence that he was trying to be reasonable and that he had a strong view that it was not fair that one parent should have more time with the children than the other.
The husband conceded that he and the wife certainly have their differences. He indicated that they corresponded on matters relating to the children via email but agreed that they both tended to say what it was that they wanted rather than negotiating or compromising their positions.
The husband conceded that [X] and [Y] were conscious of the parental disharmony.
[X] is due to start high school in 2013. It was the husband’s evidence that he had tried to open some discussions with the wife in relation to where [X] was to go to high school but had had no responses from her in relation to this issue. He deposed that he had raised the possibility of [X] attending [C] School in [G] and that this was one of several options as to high schools for [X] that the parents would have to discuss and agree upon before 2013.
The wife’s proposal
It was the wife’s evidence that she does not believe that the Property S property is sufficiently proximate to address [X]’s concerns, in particular to enable her to be able to easily engage in her community, including socialising with friends after school, especially as she gets older and goes to high school.
It was the wife’s evidence that since the interim orders were put in place in February 2010, [X] and [Y] have been a lot more settled. It was her evidence that [X] has been able to go and have a lot more plays after school as well as going to sleepovers and having friends over after school to play with her.
This claim as to [X] and [Y] being more settled was contradicted by the wife’s evidence that in recent times [X] had been acting out at school and had been in trouble for bullying and back-chatting. The wife offered no explanation for this behaviour.
It was the wife’s evidence that [Y] also is able to have friends over from his school when they are living with her and that the distance between her home and [Y]’s school does not appear to be an issue for him in being able to maintain his friendships and activities.
The wife also confirmed that she and the husband do not communicate and that theirs is a very fractured relationship.
In relation to [X]’s high school, the wife conceded she had not responded to the husband’s initial requests to discuss this matter. She indicated she was considering several schools but as [X] was not due to start high school until 2013, she felt these were enquiries best made towards the end of 2011.
Mr P
Mr P is a Clinical Psychologist who prepared a Family Report in this matter dated 10 November 2009 which was placed in evidence before the court by way of an affidavit sworn on 3 February 2010. Mr P also provided oral evidence at the final hearing of this matter.
At the time Mr P interviewed the family, the husband was living in [B] and renting a serviced apartment in [F] when the children were with him and were attending school. Thus the children were effectively living in three different homes.
Mr P indicated that it was apparent from his interview with [X] that she found the travel arrangements associated with the then current arrangement onerous and burdensome and the thought of a week about arrangement which involved travelling to school from [B] each day, a journey well in excess of an hour each way, was something that caused her real distress.
Mr P also described [X] as being very conscious of the high level of conflict between her parents and that [X] felt stressed, responsible for her parents and caught in a loyalty dispute between them. Mr P indicated that the parental relationship is a source of significant stress for [X] and that she is highly triangulated.
Mr P described [Y] as a friendly and remarkably engaging boy, and because of the nature of his developmental difficulties, is much less concerned about issues of travel and the parental relationship.
Mr P described [Y] as a concrete thinker who is happy with routine and who enjoys the benefits of both his parents’ houses and all that comes with that arrangement.
At the final hearing of the matter, Mr P had explained to him the decision the husband had made to sell his [B] home and move to Property S. It was explained to Mr P that this property is five minutes from [Y]’s school and would involve a 40 minute trip for [X].
Mr P was asked in those circumstances whether a return to an equal time arrangement would be appropriate.
It was Mr P’s evidence as follows:
“I think it's clear that a shared care arrangement or people living equally with their parents works better when children are closer to their normal networks and routines. It just makes sense, and I think even 40 minutes away is quite a long way away for it to work. It might well work if you have really cohesive, co-operative parents who are equally committed to the whole process and share in that. I think it becomes more difficult if you don't have that.”
It was Mr P’s evidence that the husband’s move from [B] to [M] certainly made travel less of a problem. Mr P however proffered a different scenario and that being a move from [M] to [K] rather than [B] to [M] as in his words:
“That would then really have kept everyone connected, and that would have been more feasible in perpetuating the pre-existing structure of 7/7. That’s still quite different to the arrangement that is now proposed.”
It was Mr P’s evidence that what the court had to decide is whether the move from [B] to [M] made the associated travel sufficiently less of a problem so that a reversion to 7/7 was feasible.
Mr P spoke of an equal time arrangement with the Property S circumstances as being tolerable for [X] but was of the view that it would be much better if the parties were living closer and in direct response to a question from the wife’s Counsel said that:
“That would move it from tolerable to really workable and best interests.”
Mr P, after considerable cross-examination from the husband’s Counsel, made his position quite clear. It was his evidence:
“Your Honour, my position I think is a really simple one, and that is how tenable is it in the long term for a shared care arrangement on this basis? If you feel that it is tenable, and if you feel that the travel is not excessive, then there's obvious support for a return to a 7/7 arrangement and for that to be the final order. If you don't feel that it's tenable in the long term and that there is really a travel issue which is going to be significant, then I wouldn’t do it.”
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Both parties are in agreement that orders should be made for them to continue to have equal shared parental responsibility for [X] and [Y]. Despite the acknowledged difficulties in the parental relationship, [X] and [Y] are described as delightful young children who have close and loving relationships with both their parents and who are developing well. This reflects positively on the parenting they have received to date.
I am satisfied that such an order for equal shared parental responsibility should continue to be put in place.
Where parents have equal shared parental responsibility for their children, section 65daa of the Act requires the court to consider the children spending equal time, or substantial and significant time, with each parent.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In this matter the husband seeks orders that [X] and [Y] live with each of their parents on a week about basis, whilst the wife puts forward the proposal that they live with her and spend significant and substantial time with the husband.
In the recent High Court decision of MRR v GR [2010] HCA 4, the High Court held in paragraph 13 as follows:
“Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.”
In paragraphs 14 and 15, their Honours held:
14.His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider as he was obliged to do, whether it was reasonably practicable in all the circumstances… His Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child’s best interests. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
The husband in this matter would have preferred to continue to live in the former matrimonial home in [B]. At enormous personal sacrifice, and having taken on board the issues that the travelling between the two homes was causing to [X] in particular, the husband has purchased the Property S property which is close to [Y]’s school and is considerably closer to [X]’s school than is [B].
The practical difficulty however is that Property S is still some
30 odd kilometres, seven suburbs and 40 minutes away from [X]’s school.
In his evidence, Mr P spoke of the practical difficulties that this distance will cause for [X]. Mr P spoke of the practicalities of:
“how it's going to pan out in the life of this young person as she gets older – I just foresee difficulties.”
Mr P then gave evidence as follows:
“In my experience, families who manage living in two houses more effectively live closer than 40 minutes apart, for all the obvious and practical reasons, and not just for now, but in a couple of years when – you know, when [X], for example, is at high school. She may not want her father picking her up and dropping her off to friends' houses. My teenagers don't. All those sort of very real considerations – there are certain practical consequences of their situation that I think can't be ignored.”
When determining what arrangements should be put in place for children, whether it be equal time or significant and substantial time, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 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
It is common ground that [X] and [Y] have a close, loving and meaningful relationship with both of their parents. Both parents readily concede that [X] and [Y] love the other and that both love, nurture and care for their children appropriately.
To their credit, both parents spoke positively of the other in their parental roles, even if they were not able to speak positively of each other as individuals.
Fortunately, there is no issue whatsoever about either of [X] or [Y] being at any risk of harm in the care of either parent.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of these in turn where relevant.
Section 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
When Mr P interviewed [X], it was quite clear that she was a very stressed and unhappy little girl, who was bitterly conscious of the high level of conflict between her parents. [X] was also very conscious of her father’s desire that there be parity of time and Mr P described her as being very keen to please both her parents.
Having said that, Mr P noted [X] to be adamant that she wants to spend equal time with her parents, though with much less travel than she was experiencing at that time.
Young [Y], because of the nature of his developmental difficulties, was totally content with the existing status quo, content in his relationships with his parents and content within his routines.
Section 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)
As indicated earlier in this judgment, [X] and [Y] have a close, loving and meaningful relationship with both of their parents.
When Mr P observed [X] and [Y] with each of their parents he described them as unequivocally positive, with the children being extremely warm and affectionate as well as relaxed, co-operative, engaged and playful.
In paragraph 35 of his Report, Mr P made the following observation:
“The observations of Mr and Ms Richards in the company of their children suggest that whatever else, separately they are well resourced, capable and competent parents, who have an excellent relationship with their children and their children with them.”
It was Mr P’s evidence in relation to a specific question that was put to him that he thought [X] had a terrific relationship with her father and that it would not be impacted by whether she lived with him for five or seven days in each fortnight. However Mr P confirmed it was [X]’s wish to spend equal time with each of her parents.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite their difficult interpersonal relationship and their belief that the only way to resolve disputes between them is to resort to litigation, neither parent has undermined or interfered in any way with the positive relationships that [X] and [Y] have with each of them.
Having said that however, Mr P expressed some real concern as to the impact upon [X] in particular of her continued exposure to the parental conflict. In paragraph 44 of his Report, he makes the following observations:
44.A much bigger issue of course is not the travel or the arrangement, but the relationship between Mr and
Ms Richards as parents. Until this is addressed it is likely that the impact upon [X] in particular will continue. I draw attention to the fact that she is quite a stressed and distressed child, who understood clearly the dilemma of her parents, being caught in between, feeling loyal to both and unable to please either…”
Further in that paragraph, Mr P makes the following observation:
“I draw attention to the obvious problem of Mr and Ms Richards parenting very much in parallel, being disparate in their parenting and not sharing their parenting at all, and ultimately, even if Mr Richards moves closer and the relationship remains unchanged, that the long term risks to both children, but in particular [X], will continue unabated unless there is some fundamental change to the parental relationship.”
In these circumstances, both parties must accept responsibility for their behaviours and take on board the real potential damage that those behaviours are already causing [X]. They need to be open to engaging in appropriate therapeutic interventions to assist them to better
co-parent their children.
I was most concerned to hear the evidence of the wife that in recent times [X] has been acting out at school and has been in trouble for bullying and back-chatting to the extent that she was nearly suspended and is currently having her behaviour monitored. There must be a real concern that this acting out by [X] has a direct correlation to the high level of parental conflict to which she is exposed, including this litigation that her parents are currently involved in and in which she is so caught up.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, 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
The husband is about to move to his new home in [M]. This is going to make it easier for [X] and [Y] as it is much closer to their respective schools.
[Y] in particular is going to benefit from this move as he is now going to be only five minutes away from his school and his extra-curricular activities.
The issue central to this matter and for determination by the court is whether that move is sufficiently proximate to address the difficulties that have been identified for [X].
Section 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
This goes to the very heart of this matter on many levels.
The husband has gone to considerable expense and personal sacrifice to move closer to where the children go to school in order to address the myriad of practical difficulties that exist because of the distance between [B] and their schools.
The question is whether Property S is sufficiently proximate to [X]’s school and her life to make equal time practical.
It was the husband’s evidence that he only looked at real estate in the [M] and [G] area. When asked why he confined himself to these areas and not look for a home between the children’s schools such as in [N] or [V] or other equally attractive locations, his explanation was that he thought that as the wife lived close to [X]’s school then it would be appropriate for him to live close to [Y]’s school. By this I understood him to mean that when [Y] was with his mother, [X] has the five minute drive and [Y] the 30 minute drive and thus when with him, the situation would be reversed with [Y] having the five minute drive and [X] the 30 minute drive. The husband also argued that if he were to live between the two schools, whichever child was dropped off to school second would have their travel time effectively doubled because they would be “backtracking” from their sibling’s school to their own.
Whilst the husband is correct in these observations, the reality is that the child for whom the travel has caused the most stress is [X]. It is apparent that [Y] has happily managed the arrangements his parents have had in place since separation. He has travelled to and from school when with both parents and has maintained his friendships and his engagement in his social activities without issue.
Whether the husband was loathe to move any closer to the wife or whether he was not prepared to disclose to the court any other reasons he had for choosing [M] ahead of locations that would have been closer for [X] can only be speculated upon. The reality is however that in making the decision to live in [M], the husband has left open the potential for there to be practical difficulties for [X], particularly as she gets older.
Whilst the parties have not at this time reached agreement as to where [X] will go to high school, if ultimately she attends high schools that were discussed by the wife which included [L] School, [and omitted] none of those schools are proximate to [M]. If she is to attend [C] School in [G] as proposed by the husband, this will be extremely close to [M] but not proximate to the wife’s residence in [K].
As [X] gets older and her peer relationships take on greater importance, living some distance from them is going to become more relevant. In circumstances where the parents have no level of co-operation or commitment to making things work, these practical difficulties could be even more pronounced.
Having said that, many teenage children in Melbourne live considerable distances from their secondary schools and other social and extra-curricular activities. They are able to manage the travelling to and from these activities, form and maintain strong friendship groups across the Melbourne Metropolitan area and develop a level of independence and maturity that forms the framework for their adult lives.
I also accept the husband’s evidence that he will accommodate [X] having time with her friends after school, including picking her up at a later time or transporting her friends to and from his home, as being genuine and as being something that he will do.
Section 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
I am satisfied that both parents have the capacity to provide for [X] and [Y]’s physical, emotional and intellectual needs.
However, as has been set out previously in this judgment, the parents need to look at their current inter-personal relationships and accept responsibility to address those issues if they want to ensure that their children, and in particular [X], are shielded from the potential impact of having to live between two such conflicted parents.
As Mr P somewhat acerbically noted in his evidence:
“It becomes up to the parents to make a decision about whether they're prepared to look at themselves and their own behaviour for the sake of their children or not.”
Mr P noted:
“My filing cabinet is riddled with people who make bad choices and whose children are affected and who promote my business for years to come.”
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties are committed, loving, responsible and involved parents.
As described by Mr P, separately they are well-resourced, capable and competent parents.
However, together they are not great parents and this judgment has already made observations of the potential risks to the children if both parties don’t take this on board and make a commitment to improve their communication and co-parenting of the children.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Both parents have been involved in ongoing litigation in relation to the living arrangements for their children since separation in 2005.
Whether the finalisation of this matter will put an end to that litigation can only be hoped for.
I note with some concern the lack of communication that has taken place in relation to where [X] is to go to high school. It can only be hoped that with some therapeutic intervention to assist them in their current communication difficulties the parties will not find themselves back in court to determine this or any other issues that will arise as [X] and [Y] become older and ongoing decisions need to be made for their care.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
To their credit, the parties have reached agreement in relation to arrangements for the children during holidays and on special occasions.
Further to their credit, both parents positively acknowledge the other in their parenting roles and speak well of the relationship that [X] and [Y] have with each of them.
Finally, both parties indicated in court a willingness to engage with therapeutic intervention to try and assist them to better communicate and co-parent.
Conclusion
This is a rather sad matter as two loving parents continue to be unable to agree as to what the living arrangements should be for their children.
The parties have two delightful children who they adore and who adore them.
The husband, at enormous personal sacrifice, is leaving his home where he would prefer to be and is moving closer to his children’s schools so that the problems that his daughter [X] in particular was having in travelling anywhere up to two hours a day could be addressed.
[X] and [Y] have a very positive relationship with both their parents. [X] has expressed a clear wish to Mr P to spend equal time with both parents. Having examined the relevant considerations under section 60CC of the Act, I am satisfied that it is in the children’s best interests that they live equally with each parent.
This finding however does not determine the matter. As set out earlier in this judgment, the High Court in MRR v GR [2010] HCA 4 makes it clear that there must also be a positive finding that such an arrangement is practical. Thus, the question is whether the husband in choosing to move to a home that is still some 40 minutes from [X]’s school, has made, to quote the High Court, “equal time parenting feasible”.
Mr P in his evidence was clear that an equal time arrangement when the distance is such as it will be here will give rise to some practical difficulties, especially as [X] gets older. It was his evidence that these practical difficulties can be overcome if the parents are cohesive and co-operative and equally committed to making the arrangement work.
The parties in this matter cannot be described as cohesive and
co-operative and the current litigation shows their lack of commitment to making the arrangement work.
However, despite the parties’ lack of cohesion and co-operation, they have managed the practicalities of the shared care arrangement for [X] and [Y] for over two years in much more difficult circumstances. The children have attended school, maintained their friendship groups and been actively involved in their extra-curricular activities and interests. This will be even more easily achieved with the husband’s move to Property S.
The husband’s evidence that he will facilitate [X]’s after school “social life” is accepted.
I also accept that as [X] gets older she will want to be more involved with her peer group. Many parents have to accommodate this change in their children and lament their weekends spent as “taxi drivers”. As children get older, they do develop expanding interests and friendship groups beyond their immediate neighbourhood.
It is not known where either of [X] or [Y] will attend high school. Like many children in Metropolitan Melbourne, they may attend a high school that is not physically proximate to the home of either of their parents. In this circumstance, the children’s peer relationships will extend beyond their immediate neighbourhood and these parents will, as a matter of course, support and encourage those new and developing friendships.
The husband’s evidence was that one of the reasons for his choice of home was its’ proximity to public transport to facilitate [X]’s (and [Y]’s) capacity to utilise such services as they become older and sufficiently responsible to take on some responsibility for their own travel.
Whilst the parties in this matter have issues in their parental relationship, their commitment to their children is not challenged and I am satisfied they will accommodate the changing demands that parenting teenagers will place on them. I am also encouraged by their commitment to engage in therapeutic intervention to assist them in improving that parental relationship.
As set out earlier in this judgment, Mr P succinctly summed up the issue for me as follows:
“If you feel that the travel is not excessive, then there's obvious support for a return to a 7/7 arrangement and for that to be the final order. If you don't feel that it's tenable in the long term and that there is really a travel issue which is going to be significant, then I wouldn’t do it.”
On balance and for the reasons set out above I find that the travel for [X] and [Y] if living in Property S is not excessive. I am satisfied that it is tenable in the long-term for there to be an equal time arrangement to be put in place when the husband moves to Property S and orders will be made accordingly.
I note that orders were made by consent on 8 February 2010 as to the arrangements for [X] and [Y] during holidays and on special occasions and these will continue to remain in full force and effect.
Finally I have made reference in this judgment to the need for the parties to engage in therapeutic intervention to assist them in improving their communication and capacity to co-parent. The need for such intervention was supported by Mr P. I am not going to order the parties to enter into such counselling as it’s success will be very much dependent on their willingness to engage in that process. It is however very much recommended that they do so.
I certify that the preceding one-hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 16 July 2010
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