Ritchie and Bender
[2010] FMCAfam 46
•28 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RITCHIE & BENDER | [2010] FMCAfam 46 |
| FAMILY LAW – Parenting orders – consideration of equal shared parental responsibility and equal shared care. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA(5) |
| T & N (2004) 31 Fam LR 281 |
| Applicant: | MS RITCHIE |
| Respondent: | MR BENDER |
| File Number: | NCC 2335 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 10, 11 November 2009 |
| Date of Last Submission: | 11 November 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 28 January 2010 |
REPRESENTATION
| The Applicant appearing in person: | Ms Ritchie |
| Solicitor for the Respondent: | Mr Fox |
| Solicitors for the Respondent: | Attwaters |
| Counsel for the Independent Children’s Lawyer | Mr Boyd |
| Solicitors for the Independent Children’s Lawyer | Legal Aid Commission NSW |
ORDERS
That all previous orders in relation to the child [X] born [in] 1996 be discharged.
That the parties have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time and communicate with the father as agreed between the parties and failing agreement as follows:
(a)From after basketball or in the event that there is no basketball, from after school on Monday until before school on Friday each alternate week commencing the second week of each school term;
(b)In the event that basketball in order 6(a) is cancelled at late notice, the mother ensure the child telephones her father or step mother and request to be collected after school;
(c)In the event that the Monday is a public holiday the child’s time with the father shall commence at 3.30pm;
(d)For the second half of each school holiday period from 10.00am on the second Saturday unless the child has a dance commitment in which case from after the dance commitment on the second Saturday until 10.00am on the last Sunday in each school term holiday and from 10.00am on the midpoint day of each Christmas school holiday period until 5.00pm on the second last day prior to the child returning to school at the end of the each Christmas school holiday period;
(e)For the purposes of Christmas school holidays in 6(d) above, the first day is taken to be the first day that the child is on holidays, including weekend days and the last day is the last day that the child is on holidays, the midpoint day is the day that falls exactly in between;
(f)That in each year the child’s time with her mother is suspended from 2.00pm on Christmas Day until a time to be agreed on boxing Day but failing agreement 5.00pm on Boxing day;
(g)That the child be at liberty to telephone or send text messages to the parents she is not otherwise in the care of at anytime that she would ordinarily be permitted to use her mobile phone taking into account school regulations and that the parents shall support and encourage such contact between the child and the other parent;
(h)On weekends during the months of June, July and August, from after school Friday to before school Monday, when the child does not have any dance commitments at any time that weekend period and the father is not working on the Saturday and Sunday and provided such weekends are not consecutive with each other unless by agreement between the parties.
In the event that the child’s birthday falls on a school day, the child spend time with the parent she is not in the care of in accordance with these orders, from after school until 8.30pm or as otherwise agreed between the child and the parties.
In the event that the child’s birthday falls on a weekend day, the child spend time with the parent she is not otherwise in the care of for a period of 6 hours or as otherwise agreed between the child and the parties.
Unless otherwise provided for in these orders or by agreement between the parties the changeovers of the child’s care between the parties be facilitated by the father or his delegate collecting the child from her school, dance or sporting commitment or in the event that none of those apply the home of the mother at the commencement of her time with him and the mother or her delegate collecting the child at the conclusion of her time with the father.
That the child spending time with the father pursuant to these orders be conditional upon him ensuring that during any period that she is in his care the child attends, on time, at any extra curricular activity she would attend in the normal course of events.
In the event that the father or his extended family is unable to facilitate the child attending at an extra curricular activity, the father must communicate with the mother to find out if she can facilitate the child’s attendance and co-operate with any arrangements made with the mother.
In the event that the child misses spending time with the father due to her involvement in performances and or rehearsals, the mother shall communicate options for make up time between the child and the father during school holiday and Christmas holiday periods.
That both parties are hereby restrained from making critical or disrespectful comments about the other party or members of their extended family in the presence or hearing of the child and from exposing her to any other person making critical or disrespectful comments about the other party or member of their extended family.
That the parties continue to attend at Unifam Counselling and Mediation until advised otherwise by the case worker with a view to improving their communication to assist in parenting arrangements for the child.
That the parties notify each other at the earliest possible time of the details and location of the child in the event of the child being involved in an accident or becoming unwell so as to require hospitalisation.
That the parties notify each other of the details or any medication prescribed for the child and instructions to assist her to comply with the medical directions.
That the mother forthwith authorise and keep authorised the child’s school to provide the father all information pertaining to the child’s school progress and education generally as he may reasonably request;
That the mother authorise any medical practitioner or specialist treating the child to provide the father with all information he might reasonably request regarding the child’s health.
That the mother authorise and request the child’s basketball authority/administration and dance authority/administration to provide to the father all information a parent would be provided with in the normal course of events regarding the child’s dance commitments as soon as it becomes available.
That the parties provide each other with at least 42 days notice of their intention to take the child overseas and at least 21 days prior to departure provide each other with a copy of the itinerary, departure and arrival flights and as far as practicable locations and contact details while overseas.
That the mother make the child’s passport available to the father upon receipt of the itinerary and flight details referred to in order (20) and ensure that all of the child’s immunisations are attended to for the specific overseas locations.
That the father provide to the mother a copy of his work roster within 48 hours of receiving same.
That in the event that either of the parties cannot comply with these orders and they are unable to reach an agreement as to alternative arrangements they are to contact Unifam, Relationships Australia, CentreCare, a relationships centre or such other similar organisation to arrange mediation.
IT IS NOTED that publication of this judgment under the pseudonym Ritchie & Bender is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC2335 of 2008
| MS RITCHIE |
Applicant
And
| MR BENDER |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is the 13 year old daughter of Ms Ritchie and Mr Bender. Her parents have found it very difficult to co-parent her since their separation more than 10 years ago. They have been before the court on a number of previous occasions.
Although this current application arose out of the mother’s application for the issue of a passport for the child the matter proceeded to a final hearing for parenting orders. The mother sought orders for [X] to continue to live with her and to have a flexible arrangement in relation to spending time with and communicating with her father. The father however sought orders for the child live with each parent in a shared care week about arrangement.
During the hearing the Independent Children’s Lawyer tendered a draft minute of order.[1] This minute was adopted by the mother.
[1] ICL 2
Background
The parties were married [in] 1995 and separated in 1999. They were divorced in August 2000.
[X] who was born [in] 1996 is the only child of their relationship.
The mother is a [occupation omitted]. She married Mr R [in] 2006 and lives with him, [X] and [Y] who is the 12 year old daughter of Mr R from a prior relationship. They live in East [M].
The father is a [occupation omitted] working shifts for a near [S]. He lives in [A] with his wife, Ms C, their daughter [Z] who is 7 years of age and [N] the 18 year old daughter of Ms C from a prior relationship.
The first set of parenting orders were made by consent in the Family Court at Newcastle on 8 August 2001. These orders provided for the child to live primarily with the mother and to spend time with the father each alternate weekend and half school holidays.
Since the making of those orders the parties have found themselves in court on at least three occasions in relation to alleged contraventions.
In 2006 the mother filed an application seeking to discharge the 2001 orders. The father did not pursue this litigation. Instead he elected to not see the child believing that the ongoing parental conflict was too much for her. In July of that year I made orders discharging the orders that provided for the child to spend time with the father. As a consequence there was a period of two years when the child did not see her father.
After the mother filed her application for a passport order the father decided to seek new parenting orders. On 3 November 2008 I made interim orders providing for the child to spend time with the father on alternate weekends and Tuesday nights in alternate weeks. In February 2009 these orders were amended to change the periods of time to each alternate week commencing at the end of school Monday to the start of school Thursday and half of all school holidays.
[X] has a very busy extracurricular life. She is involved in dance with classes twice a week and regularly performs in Eisteddfods. She also plays basketball one afternoon a week.
Issues
During the course of the hearing it became apparent that along with the usual factors requiring consideration for the making of parenting orders the following issues were of particular significance:
1)Whether it is reasonably practicable and in [X]’s best interest to live with each party in an equal shared time arrangement;
2)Whether the level of communication between the parents is a factor which contra-indicates an equal shared parenting arrangement;
3)If it is not reasonably practicable and in [X]’s best interest to live in a shared care arrangement then what should the parenting arrangements be and in particular what arrangement should be made to enable the child to spend time with the father; and
4)What are the child’s wishes and what weight if any should be accorded to them in the circumstances of this case?
The evidence
The applicant mother relied on her amended application for final orders filed 24 October 2008. In support of that application she relied on the her affidavits filed:
1)9 September 2008;
2)10 September 2008;
3)24 October 2008;
4)10 February 2009; and
5)9 October 2009.
Ms Ritchie also relied on the affidavit of her husband Mr R filed
22 September 2008.
The respondent father relied on his response filed 19 September 2008 and his affidavits filed 19 September 2008 and 19 February 2009. He also relied on the affidavit of Ms D, his sister, which was filed
29 October 2008.
The court had the assistance of a family report released 14 September 2009.
A number of documents were also tendered into evidence. The Independent Children’s Lawyer tendered two proposed minutes of order during the course of the proceedings and the court has had regard to exhibit ‘ICL2’ being her final proposed minute of order. The father tendered: the semester 1 2009 school report of the child;[2] a bundle of emails between the parties;[3] his work roster[4] and a document he prepared setting out his availability to spend time with the child.[5]
[2] Exhibit F1
[3] Exhibit F2
[4] Exhibit F3
[5] Exhibit F4
I do not intend to repeat in detail the evidence filed by the parties given that much of it was not in what would traditionally be considered admissible form but it is clear from the evidence of both parties that the ongoing conflict between them is longstanding. Their affidavits set out the ongoing difficulties that they have experienced in communicating with each other about the child’s needs. The father’s evidence paints a picture that the mother has not promoted and has been controlling of his relationship with the child. The mother’s evidence is that the father has not been consistent in that relationship and has been difficult with her in relation to the practical matters involved with co-parenting a child.
I had an opportunity to observe both parties give evidence. They each impressed as truthful witnesses although their versions of events have been coloured by their perceptions of each other and the lengthy dispute.
The family report writer set out a history of the parties’ circumstances.
At paragraph 11 of the family report Mr Paris said:
It clearly appears that the historical conflict between the parents has continued unabated since the previous family report in these proceedings in 2001. There appears little doubt that the parents’ respective positions remain entrenched, and despite both parents being engaged in a Unifam Keeping in Contact after Separation Program, that it appears unlikely that the parents will ever be able to make cooperative decisions on parenting issues. The prognosis for any repair in the parents’ relationship appears extremely poor, with the obvious damaging consequences for the subject child.
With respect I agree.
Legal principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[6] That is the overriding principle.
[6] Section 60CA
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.[7]
[7] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests I must consider the matters set out in s.60CC.
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 may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the children’s best interests for it to apply.[9]
[8] Section 61DA
[9] Section 61DA(2) & (4)
In the event that the Court orders the parties to have equal shared parental responsibility for the child the Court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
In deciding what order allocating parental responsibility is to be made
I will consider the factors set out in s.60CC.
Presumption of equal shared parental responsibility
Although the family report writer formed the view the child has suffered some psychological damage as a result of the ongoing dispute this is not a case of child abuse or family violence such that the presumption would be re-butted.
Notwithstanding that the presumption has not been displaced this case raises a number of issues warranting consideration as to whether it is in the child’s best interests for her parents to share parental responsibility for her.
The Independent Children’s Lawyer sought a sole parental responsibility order in favour of the mother with a number of conditions. These conditions were designed to ensure the father was not excluded from the decision making process completely nor be deprived of important information in relation to the child. One condition effectively would restrain the mother from changing the child’s name.
To remove a parent from the decision-making role for a child is serious and should not be done lightly. The father opposed such an order being made. The family report writer saw no rationale to oppose both parents having equal shard parental responsibility. This opinion was expressed despite also concluding that the parents are unlikely to ever be able to make co-operative decision on parenting issues.[10]
[10] See paragraphs 10 and 11 of Family Report
The basis of the Independent Children’s Lawyer’s submissions, which were supported by the mother, were that the ability of the parties to communicate is so compromised that the court would not have confidence that they will be able to remain sufficiently child focused to make the important decisions this responsibility would require of them. The father argued that most of the decisions encompassed by this responsibility have already been made such as her high school.
For reasons which will become clear below I have formed the view that these parties have real difficulties communicating effectively about the day to day needs of this child. The decisions envisaged under this consideration however involve the child’s long term needs and I am not satisfied that the difficulties the parties face in communicating are so bad that they could not work together on these issues.
Whilst I understand the basis of the Independent Children’s Lawyer’s submission and accept the proviso to the proposed order would have ensured that the father is not totally excluded from decisions affecting the child I am not satisfied that it is necessary to remove the father from the responsibility for making those decisions.
Consideration of the section 60CC factors
Although s.60CC requires the court to consider a number of specific factors, to avoid unnecessary repetition where they overlap I propose to consider all of these factors under broad headings.
The child’s relationships[11]
[11] Section 60CC(2)(a), section 60CC(3)(b) and (c)
The family report writer observed that the child had a good relationship with the adults in both households. He noted that she appeared to have a nurturing, close and comfortable relationship with the father and stepmother and that her relationship with her mother and stepfather was good and positive although she tended to speak in a more child like way to her mother than she did with her father.
Notwithstanding this observation the father complains that the mother has not fostered a positive relationship between the child and him. He gave evidence that he has brought at least two applications contravention because of the mother’s non-compliance with the initial orders. He gave evidence that in 2006 he elected not to contest the mother’s application to discharge those parenting orders that enabled him to spend time with the child. He said that he did this because he believed the ongoing conflict between the parents was greatly distressing to the child and that it would not be resolved by further litigation. His evidence is that he spoke to [X] and told her:
“I am not going to keep putting you through this. I think it’s best if I leave it up to you until you are a bit older. You should know that we always love you and are here for you and you only have to contact us when you want.”
The father was referring to himself and his wife Ms C. From the end of March 2006 he had no communication with the child and did not see her until the Easter school holidays in 2007. He said that during those holidays the mother arranged for [X] to spend part of the holidays with his sister Ms D at her holiday caravan at [F]. Ms D contacted the father and he and his wife travelled to [F] and spent some time with [X]. He said that since that time until the beginning of the first term in 2008 he and [X] would send each other text messages or telephone each other about once a week. He said that in July 2008 he received a text message from the mother advising him not to communicate via text message with the child but to telephone her on the home phone. The father said that in the beginning of 2008 the extent of the phone calls and text messages increased to about 2 or 3 a week. He said that [X] told him on a number of occasions that she wanted to start spending time with him again but that she was afraid of what her mother would do if she found out that she had been telephoning him.
The father’s shift work obligations prevent him from spending significant time with the child under the current arrangement.
The family report writer considered that the current living arrangements for the child and the time that she spends with her father are inadequate in order to assist the father daughter relationship. The family report writer considered that it was important for this child to have weekend time with the father. He recommended that the child live primarily with the mother and continue spending 3 nights mid week every fortnight with the father and in addition fortnightly weekend time during the winter period with her father upon the conclusion of the child’s dancing requirements on Saturday afternoon. He suggested that the child remain with the father until the Monday morning before school. He further recommended that the child spend half of each school holiday period with the father and for additional nominated weekends during the school holiday periods.
It was further recommended that the mother and father be engaged in family therapy by some one qualified in this field either through Unifam or Relationships Australia. The parties have been attending Unifam and there was no objection by either party to the proposal of the Independent Children’s Lawyer that they continue to do so. For this reason I will make such an order.
[X] has a good relationship with the mother but she did state to the family report writer that she feels pressure to please her.
The family report writer recommended the mother be restrained from denigrating or making negative comments regarding the father or the stepmother. This recommendation was made despite the child indicating that the mother does not do this. I accept that the mother does not deliberately denigrate the father however it is quite clear in the child’s mind that the mother is not supportive of her relationship with the father’s household.
The mother denies that she ever tried to stop [X] spending time with her father but says that the father was not amenable to the child’s dancing commitments, which in her mind was a priority.
The mother complained to the family consultant that the child sees very little of the father under the current living arrangements mainly because of his shift work commitments. The family report writer formed the view that the mother minimised the father’s and stepmother’s relationship with [X]. During the evidence I formed the view that the mother acknowledged the importance of those relationships but felt that the father had not given sufficient commitment to parenting the child in the way she would prefer and that the stepmother’s involvement was not helpful. I concluded that the mother whilst in theory acknowledging the need for the child to have a relationship with the father was not entirely committed to that relationship.
It was submitted that the mother’s attitude towards the father has contributed to difficulties in the child’s relationship with the father. Whilst no doubt the child is aware of the mother’s views of the father it was the father who removed himself from the child’s life in 2006. There is no evidence of alienation. The child however is stressed at the ongoing conflict between the parents. Apart from that she has a good relationship with both parents and their respective households. What the child needs however is to spend more time with her father. It is regrettable the father is not willing to be more flexible with his weekends to accommodate this desire of the child and also her dance commitments. I will address this issue further below.
The need to protect the child from physical or psychological harm[12]
[12] Section 60CC(2)(b)
The family report writer formed the view that this child has suffered some psychological damage as a result of the ongoing acrimony between the parents.[13]
[13] Paragraph 13
Both parties recognised that the ongoing conflict between them has been damaging for the child and whilst they felt there should be some sharing of responsibility for that, they clearly blame the other for the extent of the conflict. The father considers the mother to be controlling whereas the mother believes that the father’s desire to spend more time with the child is really motivated out of a desire to minimise his child support commitments.
The child is likely to suffer ongoing stress if the conflict continues. The potential for conflict is there in either party’s proposal but for the reasons that I will indicate below I am of the view that that conflict is more likely to arise in a shared care environment.
The child’s views[14]
[14] Section 60CC(3)(a)
According to the father during the first term of 2008 the child told him she wanted to spend half her time with him.
The mother is of the view that the child is happy with the current arrangement and is open to there being a flexible arrangement wherein the child can see and communicate with the father in accordance with her wishes. The father says that this sort of order would not work as the child is fearful of expressing any desire to the mother in order for her to see him.
The family report writer formed the view that although the child would like to spend some more time with her father her current priorities are her dancing requirements.
In the family report the child reported being happy at [S] High School in [L] although for a period she was experiencing bullying at the school. This issue has now resolved after she spoke to both her parents and changed her peer group. She said that she felt sad about not seeing or having any communication with her father for the couple of years in 2006/2007. She said that she did not really understand why that situation had evolved. She sadly acknowledged to the family report writer that her parents have always been in conflict and she said that she had “learnt to live with it”. She complained that her parents did not get along and fought about everything.
The child did say however that despite this neither parent denigrates the other to her. She said that she has a good relationship with her stepmother and considers herself to be a sister to [N] and [Z] in the father’s household and [Y] in the mother’s household.
The family report writer considered that the child had divided loyalties with each of her parents and she has a desire for both her parents get along. She said that her dancing activities have been and still remain important to her. She confirmed that she did not get to see much of her father during the time that she spent with him under the current arrangement and she felt that she needed to see more of him. She would like to spend some weekends with him but she did not want that to conflict with her dance requirements.
It was submitted on behalf of the father that the court would be careful in accepting the child’s views as being opposed to an equal time arrangement because the family report writer formed the view that the mother’s attitude would have influenced the child to such an extent that she would not have been able to contemplate the possibility of such an arrangement. Whilst I accept the child feels under pressure to please her mother I am also satisfied that she is a mature girl for her age and given she was able to be frank about her feelings of being under pressure to please her mother her views expressed to the family report writer and the Independent Children’s Lawyer are likely to be those she has arrived at independently and in the context of the lengthy dispute between her parents.
I am satisfied that the child does not want an equal time arrangement but would like to spend more time with her father. This desire though would not be at the expense of missing out on her extracurricular activities especially dance. The father’s commitment to spend weekends at his caravan at [P] some two hours north of [M] makes this problematic. I will address the father’s attitude to this below.
The child’s wishes should be afforded considerable weight in this case given her age and that she has been detrimentally affected by the ongoing dispute between the parties. I am confident that despite that conflict she desires a positive and close relationship with both parties.
Practical considerations[15]
[15] Section 60CC(3)(d) and (e), section 65DAA(5)
In the decision of T & N[16] Federal Magistrate Ryan, as her Honour then was, held that a number of practical considerations should be explored to see if a shared care arrangement has the potential to work for the child’s interests. These considerations can be summarised as:
[16] (2004) 31 Fam LR 281
1)The parties’ capacity to communicate on matters relevant to the child’s welfare;
2)The physical proximity of the two households;
3)Whether the homes are sufficiently proximate so that the child can maintain friendships in both homes;
4)The prior history of caring for the child, and whether the parties have demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment;
5)Whether the parties agree or disagree on matters relevant to the child’s day to day care, diet and sleeping pattern;
6)Whether if the parties disagree on these matters there is a likelihood that they would be able to reach a reasonable compromise;
7)Whether they share similar ambitions for the child, for example as to religious adherence, cultural identity and extra curricular activities;
8)Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes;
9)Whether each party respects the other party as a parent;
10)The child’s wishes and the factors that influence those wishes; and
11)Where the child’s siblings live.
I am satisfied that the two households are sufficiently close to each other to not cause any practical problems moving between them and such that the child would be able to maintain her peer group friendships.
The parties have not previously tried an equal shared care arrangement since separation and given they have not been able to co-parent this child without conflict and causing the child distress I have no confidence they will be able to do so in a shared care arrangement which by its nature requires significant co-operation between the parents.
I am not satisfied the parties respect each other as parents. Despite recognising mutual responsibility for the ongoing conflict they appear unable to give ground in their dispute. That is unlikely to change. They also have different attitudes to the child’s extracurricular activities especially dance. The father, whilst recognising its importance in the child’s life, does not consider it as important as the family spending the whole weekend at their caravan site at [P]. Whilst there are always competing priorities in parenting and the father’s position also has merit his lack of flexibility on this issue will only lead to further disputes between the households and effect his relationship with the child given her strong views on attending her dance classes.
A major stumbling block for the father’s proposal of an equal shared care arrangement working is the inability of the parties to communicate effectively to ensure the child’s day to day needs are met. Although they have been able to communicate by emails and text messages the best form of communication is oral communication: face to face and over the telephone. The parties were able to have a coffee together during these proceedings, the first for many years. Mr Fox for the father called this a ‘Road to Damascus’ moment. Such encounters should be encouraged however I am mindful of the history of the dispute between the parties and am not confident that they will be able to overcome their difficulties soon.
The father’s preferred way of communicating with the mother is through e-mail and text messages. A lot of the communicating is done between his wife and the mother with the child sometimes as the go-between. This has not been free of problems and is unlikely to change. During the hearing the court was directed to evidence of a dispute over the payment of the child’s orthodontist’s fees and an incident where the child’s movement between the two households was affected by practical difficulties in receiving e-mails and a lack of flexibility in communicating between the mother and the father’s wife. I do not intend to make any findings as to who was at fault here other than to find that these incidents are examples of the problems that are likely to arise in the future between the parties. Whilst these problems will continue to exist regardless of whether there is a shared care arrangement or a substantial and significant time arrangement in place the potential for conflict is more likely to arise in a week about arrangement as proposed by the father.
The capacity of the parents to provide for the needs of the child[17]
[17] Section 60CC(3)(f)
Whilst I have no doubt each parent and their partners are able to provide for the child’s day to day needs such as feeding and clothing her their inability to relieve her of the burden of their conflict remains a concern.
The attitude to the child and to the responsibilities of parenthood[18]
[18] Section 60CC(3)(i), section 60CC(4)
The child did not see her father for a long period in 2006 and 2007 as a result of the father’s decision to step back from litigation. I am satisfied that the father had the best interests of the child in mind when he made that decision. I accept he wanted to minimise the ongoing conflict for the child. Notwithstanding his bona fides in making that decision his relationship with the child as suffered as a result. Fortunately that relationship has resumed.
The family report writer is of the view that for that relationship to improve the child needs to see her father more. He recommends the child have some weekend time with the father subject to her commitments to dance. Although the father recognises the importance of dance to [X] he is not prepared to alter his long standing commitment to spending weekends at the caravan when that would conflict with her Saturday morning dance classes. I found the father’s evidence and attitude to this disappointing. In making that finding I am not in anyway critical of the father wanting to spend weekends at the caravan. It is a positive for his family that priority is given to family time. However this child has had a keen interest in dance for a long time and clearly expressed her wish to spend more time with her father provided she could also attend her classes. The father indicated that unless the child was performing in an eisteddfod her dance commitments would have to give way to the weekends in the caravan. He says that this is a family arrangement that he intends to maintain. The father’s decision to forego spending time with the child if it means not being able to take the family to the caravan or having to wait until after her dance classes on Saturday mornings indicates that he is not prepared to prioritise this child’s needs at this point in time.
The family report writer considered that the mother whilst fulfilling her parental responsibilities has been overtly negative in promoting the child’s relationship with the father and stepmother. Mr Paris acknowledged that both parents share responsibility for their destructive dynamic. I formed the view that both parties have made significant mistakes in relation to their parenting of [X] and in particular the mother has not been able to separate her own displeasure with the father and be child focussed when trying to communicate with him. The father has also failed in this regard and neither party has been sufficiently flexible. The family report writer indicates that the father may need to relinquish some time at the family’s caravan so that he can spend some weekend time with [X] given her prioritising of her dancing commitments.
Family violence[19]
[19] Section 60CC(3)(j) and (k)
The father told the family report writer that there was no violence in the parents’ relationship however the mother reported that her relationship with the father was a tense and stressful one and that he was controlling during their relationship. She alleged that at one stage he head butted her when she was pregnant with [X] and that on another occasion he attempted to run her over.
This issue was not canvassed in the hearing. Without minimising its importance I am satisfied that this issue is without currency and is not relevant to the current dispute.
Potential for further litigation[20]
[20] Section 60CC(3)(l)
These parties have been involved in litigation for the majority of the child’s life. She has “learnt to live with” their ongoing conflict. The father’s solicitor submitted that the mother indicated that she would follow the orders of the court even if shared care was ordered and that the court should therefore not be concerned as to the potential for further litigation. The father’s proposal though has the potential to break down given my findings as to the ability of the parents to communicate. Consequently there is greater potential for further litigation if a shared care arrangement was implemented.
Although the father’s proposal may have a greater risk of further litigation I have not given it much weight given I am satisfied that the parties are tired of litigating and are unlikely to return to court.
Discussion
The child would like to spend more time with the father than the current orders provide and the father’s roster enable. The court was assisted by the tendering of the father’s work roster[21] and a document that set out his availability to spend time with the child.[22] The father’s proposal would see him working on the Saturday of the weekend in the week about arrangement that the child would spend with him except during the winter months where he proposes the weekends be swapped with the mother so that he could spend the whole weekend with the child. The reason for this approach was to overcome the difficulty with him wanting to spend his non-working weekends at [P] and the conflict that would have in the non-winter months when the child has dance commitments.
[21] F3
[22] F4
The child’s best interests would be served by her having more time with her father. This will be somewhat defeated if he is working on the weekends that she is to spend with him. The optimum for [X] would be to spend the weekends with the father that he is not working however he is not prepared to forego his visits to [P] until after the child’s dance classes. Whilst [X] desires a relationship with her father her dance classes are a priority at the moment. Given the parental conflict she has been embroiled in and the significant period when her father was out of her life I consider that maintaining stability and giving weight to her wishes would best serve her interests.
The proposal of the Independent Children’s Lawyer would see an extra night each fortnight in the father’s household. I am satisfied that this would assist in meeting her need to spend more time with her father but not be de-stabilising. I am also satisfied that she should spend some weekend time with her father provided her dancing commitments are not compromised and the father is not working so as to be available for her.
The Independent Children’s Lawyer proposed that in the event that the Monday the child is to spend with the father happens to be a long weekend then the time should commence at 9am. The mother would like that to be 5pm or in the alternative at 3.30 as if it was a school day. The Independent Children’s Lawyer argued that this would be an opportunity for the child to spend with the father or if he is working with her step-mother and sisters. Whilst that is correct it would also limit an opportunity for the mother and child to have a long weekend away and for that reason I accept the mother’s alternative proposal of 3.30pm.
The child has spent most Christmases since separation with the mother on Christmas Eve and Christmas morning. The mother and Independent Children’s Lawyer sought orders for that to continue. The father would like the more common alternate Christmas arrangements. In making the submissions on behalf of the Independent Children’s Lawyer Mr Boyd relied on the wishes expressed by the child to the Independent Children’s lawyer. Although there was no evidence of this in what might be described ‘as proper form’ I am satisfied that
Ms Callender was advised by the child that she wished for the long standing arrangement to continue. Ordinarily I would make orders for alternate Christmases but given the child’s wishes and her age I propose to continue the long standing arrangement.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
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