RIVERO & MELLOTT
[2010] FMCAfam 237
•15 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RIVERO & MELLOTT | [2010] FMCAfam 237 |
| FAMILY LAW – Final arrangements for care of child aged 3 years and ten months – best interests – equal time arrangement – what is reasonably practicable – nature of parties’ parenting relationship – parties’ facility to communicate. |
| Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA |
| Rivero & Mellott [2009] FMCAfam 640 Bright v Bright (1995) FLC 92-570 |
| Applicant: | MR RIVERO |
| Respondent: | MS MELLOTT |
| File Number: | ADC 1333 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 3 March 2010 |
| Date of Last Submission: | 3 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 15 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nelson QC |
| Solicitors for the Applicant: | Jane Ekin-Smyth |
| Counsel for the Respondent: | Mr Noble |
| Solicitors for the Respondent: | Judith Jordan |
ORDERS
In addition to the final children’s orders made by consent on 25 February 2010 it is further ordered by consent
The child [X] born [in] 2006 be under the care of Dr Gordon Eckert & Associates when she is in Adelaide save and except in an emergency.
IT IS FURTHER ORDERED
During the remainder of 2010 the current living arrangements for the child be maintained pursuant to which she lives with each of her parents, save and except for periods of agreed holidays and for agreed special occasions, in a rotating fortnightly schedule as follows:
(a)In week one of a two week cycle:
(i)With the father from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the mother from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the father from Saturday at 9:00am until Monday at 9:00am.
(b)In week two of a two week cycle:
(i)With the mother from Monday at 9:00am until Thursday at 9:00am;
(ii)With the father from Thursday at 9:00am until Saturday at 9:00am;
(iii)With the mother from Saturday at 9:00am until Monday at 9:00am.
From the start of 2011 the schedule set out in order (2) above hereof be modified so that the father spends an additional night per fortnight with the child as follows:
(a)In week one of a two week cycle:
(i)With the father from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the mother from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the father from Saturday at 9:00am until Monday at 9:00am.
(b)In week two of a two week cycle:
(i)With the mother from Monday at 9:00am until Wednesday at 9:00am;
(ii)With the father from Wednesday at 9:00am until Saturday at 9:00am;
(iii)With the mother from Saturday at 9:00am until Monday at 9:00am.
Order (3) hereof be suspended during all periods of school holidays and during each such holiday period the child will live with each of her parents in alternating blocks of seven days save and except for the specific special occasions dealt with by the current orders of 25 February 2010 or unless the parties agree otherwise.
From the commencement of 2012 the child live with each of her parents, during school terms, for equal periods of time moving between her parents respective households on a weekly basis, subject to the arrangements for school holidays set out in order (4) hereof, which shall prevail in respect of school holidays from the start of 2011 onwards.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rivero & Mellott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1333 of 2009
| MR RIVERO |
Applicant
And
| MS MELLOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Rivero “the father” and Ms Mellott “the mother” are the parents of [X], who will be four years of age on [date omitted].
The two parents are in dispute about appropriate care arrangements for [X]. The areas of dispute, although of undoubted importance to the parties, can be described as falling into a small compass.
Previously, the parties have agreed that they should have equal shared parental responsibility for [X].[1] This agreement has followed arrangements whereby [X] has received significant levels of care from each of her parents.
[1] See orders of 25 February 2010 and the earlier consent orders of 20 May 2009.
Currently, [X] spends six nights per fortnight at her father’s home and the remaining eight nights at her mother’s. As a result of this arrangement, the parties acknowledge that [X] has a close and loving relationship with each of them. An outcome which each believes must be entrenched by any orders which the court ultimately makes.
The parties have not always had an easy relationship with one another.[2] As such, I would be naïve if I thought that now they have a completely trusting and empathetic parenting relationship with one another. In the words of the court appointed expert, Mr Rudzitis “issues of post-separation politics” remain at large between them.
[2] See Rivero & Mellott [2009] FMCAfam 640. These final reasons for judgment should be read in conjunction with this earlier interim decision.
This state of affairs is understandable given that the parties separated relatively recently, in January of 2009, after a relationship and marriage of around five years. [X] is their only child together. It is a common phenomenon for separated parents to take some time to adjust to their changed circumstances.
The parties agreed on the 6/8 nights per fortnight regime on 20 May 2009. Under it, [X] moved between her parents’ respective homes every two or three days or so. No doubt this arrangement came about in recognition of her tender years and because of concerns that she should not be subject to a prolonged separation from either of her parents.
This arrangement came unstuck, almost as soon as it had begun, following an unpleasant incident on 25 May 2009. In the proceedings which followed, both parties asserted that the other had significant issues to do with the management of anger.
After some considerable thought, for reasons already provided, I decided to reinstate the earlier arrangements on which the parties had agreed in May.[3] It is common ground between the parties that [X] has thrived in this arrangement.
[3] See Rivero & Mellott (supra)
To the parties’ mutual credit, they have not found it necessary to return to court, in the interim, to re-agitate issues arising in respect of [X]’s care, pursuant to this essentially shared care arrangement. In addition, they have been able to resolve issues of marital property, which were previously an irritant in their relationship.
It is Mr Rivero’s position that he was instrumentally involved in caring for [X] from the earliest stages of her life. More recently, in the period following separation, he has cared for her pursuant to the court’s order.
It is his case that the time is now right, and it would be in [X]’s best interests, for the parties to move closer to a strict equal time parenting arrangement. In particular, he would wish to modify immediately the current arrangement by adding alternate Wednesday nights to the period which he currently spends with [X].
Mr Rivero also wishes to inaugurate a regime whereby [X] lives week about, with each of her parents, from the start of 2011. Prior to that time, he would want to spend time with [X], for alternating weeks during school holidays, although in a formal sense, [X] has not as yet commenced primary school.
Ms Mellott acknowledges that ultimately [X] will be parented in an equal time arrangement, moving between her parents’ homes on a week about basis. However, she believes it would be premature, and contrary to [X]’s best interests, to commence this regime in 2011. Rather, she advocates commencing the arrangement at the start of the school year in 2012, when [X] will be around six years of age.
[X] has two half-siblings. They are [Y] aged 15 and [Z] aged 14. [Y] and [Z] are Ms Mellott’s children from an earlier relationship.
Ms Mellott and the children’s father parent [Y] and [Z] in an equal time arrangement, based on week about care.
It is implicit, in the father’s position, that he recognises that [X] needs some time to adjust to a strict 7 day about regime. It is for this reason that he proposes the addition of an extra night, each alternate Wednesday, which modifies the current broken week arrangement.
From Ms Mellott’s perspective, such an outcome will have implications for [X]’s level of relationship with [Y] and [Z]. It will mean that she will spend one less evening per fortnight with her two older half-siblings.
It is Ms Mellott’s case that [X] has a loving relationship with [Y] and [Z] and it would be detrimental to her best interests, if she spends less time with them in the short to medium term. However, it is common ground between the parties that, when the week about regime commences, [X]’s time with her mother can be coordinated to run concurrently with the weeks when [Y] and [Z] are in Ms Mellott’s care.
The parties have been able to agree on other previously controversial issues between them regarding [X]’s future parenting. These issues concern such matters as which school [X] should attend; where she should be exchanged between the parties; the exchange of information between them regarding issues to do with [X]’s welfare; and arrangements for special occasions.
In addition, the parties have agreed that Mr Rivero will be able to take [X] on two ten day holidays to Bali and Falls Creek respectively and Ms Mellott will be able to take [X] on a holiday of similar length to the Flinders Rangers, during the remaining portion of 2010.
The issues in dispute between the parties, can be summarised as follows:
·Should the existing arrangement for [X]’s care be changed immediately, to add an extra Wednesday evening to the time she spends in her father’s home?
·
When should the week about arrangement commence? At the start of 2011 as Mr Rivero prefers or at the start of 2012, as
Ms Mellott wishes?
·Should a week about arrangement commence immediately in respect of school holidays or should this regime be delayed until 2011?
These proceedings are intended to resolve these areas of dispute between the parties. When parents, who no longer live together, ask the court to make orders in respect of their child, it is the best interests of that child which are the paramount or most important consideration.
The provisions of Part VII of the Family Law Act, 1975, and adversarial proceedings such as these, encourage parents to engage in disputes regarding the relative advantages and shortcomings of competing regimes, which strictly divide parenting time between them. Invariably each such parent can provide convincing reasons as to why his or her proposal is the better one.
My responsibility is to remain focussed on how any child concerned may benefit from having a meaningful relationship with each of his or her parents. When such a focus is maintained, it is often difficult to differentiate greatly between the competing proposals of the parties concerned, as each such regime will ensure that the child has a “quality” relationship with both of the parents concerned.
Background
Some of the important matters, which bring the parties to this point, are set out in the earlier judgment. They are both now in their early forties. They married [in] 2005. There is no dispute between them that they separated, in difficult and unhappy circumstances, in January of 2009.
Mr Rivero is a [tradesman], who enjoys flexible hours of work.
Ms Mellott is a [healthcare professional], who works shifts in [B], near the parties’ former family home. She is able to arrange her shifts to accommodate her parental responsibilities for [X], [Y] and [Z].
Ms Mellott has been living in the parties’ former home, since they separated. However, pursuant to the recently made property orders, she will soon vacate the house and Mr Rivero will assume sole ownership of it.
At this stage, Ms Mellott is unsure as to where she will move to live. Ideally, it will be close to her work. Of some significance, in this regard, is the fact that the parties have recently agreed that [X] will attend [S] School, also in [B], until she has finished at least grade 3.
[S] School offers a pre-school program at its Early Learning Centre. The parties agree that [X] will start at the Early Learning Centre forthwith, in its Montessori stream. She will attend on two half days per week on Monday and Wednesday, during term 2, 3 and 4 of the 2010 academic year.
The following year (2011), it is envisaged [X] will take part in a kindergarten class, attending the Early Learning Centre on four days per week for four half day sessions. She will turn five in the first term of 2011.
Thereafter, it is envisaged that she will formally start primary school, at [S] School, at the start of term 1 in 2012. Ms Mellott describes this as [X]’s “reception” year, although she concedes that she is somewhat confused about the strict terminology.
It is envisaged that most of the children, with whom [X] will have spent 2011 at the Early Learning Centre will move on together to primary school at [S] School. At this stage, [X] will be nearly six years of age. This is the stage at which Ms Mellott believes it will be appropriate for [X] to move into the week about care arrangement.
It seems to be the case that [X] could have started in the Montessori pre-school program from term 4 of 2009. The letter confirming this indicates that it was anticipated that [X] would have three terms in this program before having four terms of kindergarten in the second half of 2010 and the first half of 2011, commencing reception at term 3 of 2011.[4]
[4] See letter from [S] School to the parties dated 23 September 2009 being exhibit 1
It would seem to be the case that [X] is now around two terms behind this schedule and most probably will commence at primary school, at [S] School from term 1 of 2012. Up to this stage, [X] has not attended any pre-school or kindergarten program. The letter to the parties indicates as follows:
“The programs offered within our early learning centre are distinctive and of very high quality, and all staff members are well qualified and experienced. They offer our children a strong and positive beginning to their formal schooling. The transition from the three year old to four year old programs and then to school are a hallmark of [S] School and will continue to be offered to all our children in the ELC.”
It would seem to be the case that [X] has probably missed the most opportune time to take part in the three year old program and so will be delayed in entering the four year old program. This is likely to mean that she will start school perhaps a little later than many other children. However, in the greater scheme of things, this delay seems of marginal importance.
The current arrangement in respect of [X]’s care came into existence on 20 May 2009. Pursuant to it, [X] lives with each of her parents as follows:
In week one of a two week cycle:
·With the father from Monday at 9:00am until Wednesday at 9:00am;
·With the mother from Wednesday at 9:00am until Saturday at 9:00am;
·With the father from Saturday at 9:00am until Monday at 9:00am.
In week two of a two week cycle:
·With the mother from Monday at 9:00am until Thursday at 9:00am;
·With the father from Thursday at 9:00am until Saturday at 9:00am;
·With the mother from Saturday at 9:00am until Monday at 9:00am.
The father wishes to modify this regime, for the remainder of 2010, so far as the second week of the regime is concerned, by adding Wednesday night to the time [X] lives with him.
From the start of 2011, he would want the week about arrangement to begin. At the time, as I understand matters, [X] will still be in the Early Learning Centre at [S] School, as she will start reception in 2012.
The earlier proceedings between the parties were characterised by significant issues of family violence. The parties have chosen not to investigate these matters before me. As such, although the parties’ relationship cannot be described as convivial, there have apparently been no episodes of overt hostility between them, since late May of 2009. In this regard, both seem focussed on [X]’s best interests.
In this context, the parties have been able to reach agreement about very many matters to do with [X]’s care. [X] will travel to Bali with her father, for ten days, in May of 2010 and to Falls Creek, for a similar period, in July/August of that year.
In addition, she will holiday with her mother, in the Flinders Rangers, for ten days in April 2010 and for a further period of ten days in September/October, when it is anticipated she will go to either Tasmania or Queensland.
As can be seen, the holiday arrangements are ostensibly based on considerations of strict equality between the parties. The parties also agree that, unless otherwise agreed, [X] will be exchanged between them at a service station close to the [B] home. Again, this arrangement does not speak of a perfect or close relationship between the parties.
a) The father’s evidence
Mr Rivero relied on a brief affidavit and gave some additional oral evidence. He presented as an earnest and considered witness, who is undoubtedly devoted to [X].
He deposes that he and Ms Mellott have had “a relatively successful shared care arrangement since in or around June of 2009”. I suspect that the use of the word “relatively” indicates that the parties’ relationship has not been without its ups and downs.
Mr Rivero sees the appropriateness of a week about arrangement in practical terms. He believes it will be easier for the parties to arrange [X]’s life, particularly her educational needs, if she moves between their respective households less frequently. He believes that this will be the most stable and secure regime for [X] and will be viable for her, in developmental terms, when she is five years of age.
Mr Rivero describes [X] as a “mature, happy and confident child”. As such, he believes that she will be able to readily adapt to the week about regime. The evidentiary underpinning of his case is that he has provided a significant level of nurture for [X] both before and after the parties separated.
This is not an issue in great dispute between the parties. Ms Mellott acknowledges that [X] loves her father very much indeed and looks forward to seeing him. I suspect however that it would be her view that [X] is closer emotionally to her than to the father.
There is of course no principle of either law or psychology which espouses that a mother’s love is superior to that of a father’s or vice versa. It may however be the case that, in their respective feelings of love and affection for [X], the parties have different attributes and skills to bestow upon [X].
I accept the tenor of Mr Rivero’s evidence that he has made significant sacrifices, both financial and personal, to be a “hands on” parent. As such, it is his case that he has demonstrated, since [X] was a baby, that he is able to attend to [X]’s needs on every “emotional and physical level”.
In this context, it is Mr Rivero’s position that [X] is now emotionally ready to spend a little more time with him and a little less time with her mother, although it may not be appropriate for her to be separated from one or other of her parents, for an extended period, at this stage of her development.
This is the background to his position that it is now appropriate for [X] to spend an extra night with him in the second week of the current rolling fortnightly shared care regime. In addition, such an outcome will prepare [X] for the week about regime, which should begin in about twelve month’s time.
Although Mr Rivero does not specifically express it as such, I also suspect that such an outcome appeals to his personal sense of what is likely to be a fair result in the case. From my perspective, it is difficult to see that the extra night will have any major consequence for the quality of relationship [X] has with her father.
I accept however that, for understandable and human reasons,
Mr Rivero wants to spend as much time as possible with [X]. That really expresses the dilemma in the case. Ms Mellott and indeed other of [X]’s relatives, both on her paternal and maternal aspects, are likely to share similar aspirations. [X] is fortunate to be a much loved child, who is surrounded by many individuals who are devoted to her welfare.
b) The mother’s evidence
Ms Mellott presented as a thoughtful and pleasant person. As such, she seemed to me to be likely to be an insightful and sensitive parent. Certainly that is how I found her to be.
Ms Mellott steered away from any description of [X] as an exceptional child, either in an emotional or intellectual sense. Rather, she characterised [X] as a “fairly intelligent and confident child.”
Ms Mellott qualified this description with the statement “I see [[X]’s] frail and vulnerable side [[X]] does get clingy. She has been exposed to fairly intensive parenting over the last year or so.”
I accept the sincerity of this evidence. I do not think that it is proffered with any intent to limit the level of Mr Rivero’s relationship with [X] for any ulterior motive on Ms Mellott’s part. Rather, it seemed to me to be a heart felt and accurate description of [X] from her mother’s observations of her.
This assessment of [X] is the basis of Ms Mellott’s view that the court should adopt a cautious approach in changing the current regime for [X]’s care. Ms Mellott accepts that [X] is dong well under the current six/eight day fortnight regime, but she would categorise the arrangement as an ambitious one, which is at the upper range of what is developmentally tolerable for [X].
In these terms, Ms Mellott would not wish to depart radically from the current arrangements for [X]’s care, until the start of 2012, when it is anticipated she will move into reception or her first year of formal primary school at [S] School, after completing kindergarten in the previous year.
Ms Mellott’s position can be summarised from the following extract from her affidavit material:
“What concerns me is that starting school can be a very stressful and exhausting time for young children and expecting [X] to cope with another major life change at the same time will, I believe, be to her detriment. As her mother, I believe that it would be in her best interest not to have her starting school and moving to week and week about care in the same year. I will consent to week and week about care commencing at the start of the year that [X] commences in Grade 1 at [S] School allowing her to settle in her first year of school into a new environment and all of the new expectations that will bring. I am concerned however that if that shift occurs at the same time as starting school that it may simply place [X] as a young child, who I believe has a strong bond with me and with [Y] and [Z], under too much pressure.
[X] has to date not been separated from me for more than two or three nights at a time.”[5]
[5] See mother’s affidavit filed 11 February 2010 at paragraphs 20-21
It is unavoidable that these adversarial proceedings between parents, who are in conflict over arrangements for the care of their child, will be perceived by each of them as a struggle between the sexes.
Ms Mellott preferences her statement of opinion regarding [X]’s welfare with the expression “as her mother”. The implication which I take is intended to be conveyed, either consciously or unconsciously, being that her maternal role is likely to give more credibility to the statement of opinion which follows.
This is difficult water for me to navigate. As previously indicated, I do not think there is anything inherently superior in the generic parenting which is provided by a mother as opposed to a father, though the parenting may well be different.
However, given my assessment of Ms Mellott as a sensitive and insightful parent, without any apparent secret agendas of her own, I think I would be imprudent to easily dismiss her opinion regarding [X]’s resilience and the viability of moving to a shared care regime prematurely. I do not do so because of her sex alone.
After all, the best prospect of such an arrangement working successfully, in the long term, is if both parents are accepting of it and [X] herself is aware that this mode of her parenting is acceptable to both her father and her mother.
Ms Mellott has deposed that [X] enjoys spending time with her father and members of his family. As such, she is not opposed to the week about arrangement in terms of any concerns she has about the nature and quality of [X]’s relationship with her father. Rather, she has reservations about how well she and Mr Rivero communicate with one another and, as such, the viability of their relationship to sustain a shared care regime.
It is Ms Mellott’s view that the parties’ facility to communicate remains severely impaired, notwithstanding the fact that they have been able to reach a compromise in respect of very many issues to do with [X]’s care. To use her own expression, she does not believe that she and
Mr Rivero “will be able to pull together”, in respect of the ongoing parenting of [X].
In this regard, Ms Mellott is fearful that the parties’ relationship may possibly revert to its previous levels of dysfunction, once these proceedings are finally resolved, with potentially deleterious consequences for [X]’s well being. Needless to say, Mr Rivero has a very different perspective on the current nature of the parties’ parenting relationship and how it is likely to fare in future.
Mr Rivero is the instigator of the shared parenting regime, particularly that it should be inaugurated sooner rather than later. In such circumstances, I would expect him to have a more rosy view of the parties’ parenting relationship and their facility to communicate with one another than the mother.
In my recollection, the proceedings of May/June 2009 were bruising in nature. Until recently, issues about which school and doctor [X] should attend were controversial. Specific provisions are required about handover locations. These factors do not speak of an empathetic or easy relationship between the parties.
Of even more significance, the parties are in vehement dispute about whether the six/eight day per fortnight regime should be continued, in the short to medium term and the precise year when the week about arrangement should start.
As I have previously indicated, in my view, both parties can muster cogent arguments as to why his or her option is to be preferred. However, in my view, what is important is the polarisation of the parties’ views and their inability to compromise, as is axiomatic from the fact that they seek the court’s adjudication in respect of the issues concerned [see section 65DAA(5)(c)].
In all these circumstances, I believe that Ms Mellott’s appraisal of the parties’ parenting relationship and the current level of their communication difficulties is more likely to be reliable than
Mr Rivero’s. It also seems to me to be more likely than not that
Ms Mellott will have the greater perspicacity in respect of the impact of the parties’ relationship, with one another, on [X] herself [section 65DAA(5)(d)].
However, all relationships have difficulties from time to time. It would be unrealistic for me to expect that, when parents separate after a reasonably lengthy relationship, they would not experience some trials and tribulations, as they adjust to living separately.
Inevitably, these circumstances must lead to differences of opinion, between the parties concerned, particularly since the relationship between them has ended. An occurrence which, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
As I observed in the earlier reasons for judgment,[6] I must be careful not to adopt unduly utopian standards for the parties’ communication skills. However, given the structure of the Family Law Act, particularly its emphasis on the overall practicality of shared parenting time arrangements, I must also be careful not to be dismissive of
Ms Mellott’s concerns or views about what is likely to be best for [X].
[6] See Rivero & Mellott (supra) at paragraph 153
The intent of the legislation is that the court should create an idiosyncratic outcome for any child concerned, which is based on the service of the best interests of that child. In so doing, the court must not be formulaic in how it divides parenting time or otherwise attempt, either wittingly or unwittingly, to assuage the feelings of the parents concerned.
[Y] and [Z] presently spend their seven day block with Ms Mellott in the second week of [X]’s fortnightly care roster, when she spends five nights with her mother and two days with her father, as opposed to the preceding week when it is divided four/three days about. It is this second week, which Mr Rivero seeks to modify by the addition of an extra Wednesday night.
Accordingly, such an outcome will diminish the strict amount of time, which will be available to [X] to spend with [Y] and [Z]. From
Mr Rivero’s perspective, his relationship with [X] is higher on a hierarchy of importance than that which she enjoys with her two older half-siblings.
From Ms Mellott’s point of view, she is concerned at any possible reduction in the level of [X]’s relationship with [Y] and [Z], in the short to medium term, until the week about regime can be inaugurated and engineered to coincide with the weeks when [Y] and [Z] are with her.
I am loath to talk in terms of the relative or hierarchical merits or importance of various relationships to [X]. [X]’s relationship with her father is significant, as are her relationships with [Y] and [Z]. What is important is that [X] should be able to maintain and extend her relationship with these central individuals in her life. It is simplistic to think that this will occur on the basis of the extent of time spent with each alone.
[Y] and [Z] are teenagers, who are attending secondary school at [omitted] High School. I accept they love their little sister very much indeed, but I would anticipate that there is something of an experiential gulf between them and [X]. Teenagers have different preferences and interests to pre-schoolers. For obvious reasons, developmentally, they are very different.
[Y] and [Z] finish school at around 3:15pm. They have a snack or milkshake after school. They play together or watch a DVD prior to dinner between 5:30pm and 6:00pm. Afterwards they do their homework and [X] goes to bed between 6:30pm and 7:00pm.
On Wednesday’s, during the season, [Z] has soccer practice. Very often, [Y], [X] and Ms Mellott accompany him to practice and travel home afterwards together. It seems to me that [X] has ample time to “hang out” with her older brothers, in a relaxed family environment. It seems unlikely to me that this beneficial level of relationship will be significantly curtailed if she spends four as opposed to five evenings per fortnight with [Y] and [Z].
Necessarily, school day mornings are busier and more structured. [Y] and [Z] have to get ready for school and have strict time constraints. However, I also note that [X] will have the opportunity to spend two extended holiday periods, with her brothers, during the remainder of this year.
c) The family assessment report and the evidence of Mr Rudzitis
As is commonly the case in matters concerning parenting arrangements for children, the parties jointly commissioned an expert to assess the appropriate outcome from [X]’s point of view. In this case, the family assessment report was prepared by Mr Rudizits, a very experienced psychologist with extensive experience of interviewing and observing children, particularly in the context of significant parental disputation.
Mr Rudzitis had a significant advantage over me, in this case. He was able to see and hear [X]. He was able to see the parties interacting directly with her and form an impression of her personality, level of development and the nature of her relationship with each of her parents.
Mr Rudzitis was in favour of the parties continuing to share parental responsibility for [X] equally. More specifically, he was in favour of [X] spending an extra night with her father, each fortnight, starting immediately. It was also his view that [X] attaining the age of five years was the appropriate milestone for the court to consider a week about arrangement for her care.
Needless to say, Mr Rivero is supportive of Mr Rudzitis’ recommendations, whilst Ms Mellott is more cautious. She does not challenge Mr Rudzitis’ expertise but questions whether he is likely to have a complete picture of [X] from what was a comparatively brief opportunity to observe her.
All family reports must be considered a “snapshot” in time, which is taken in somewhat artificial and stilted circumstances. Mr Rudzitis would be the first to acknowledge that his report and assessment would have been more comprehensive, if he had more time available to him to observe [X]. In this regard, I believe that I should be careful not to disregard Ms Mellott’s assessment of [X]’s level of resilience.
Mr Rudzitis is not generally in favour of shared care regime for pre-primary school children. However he regarded [X] as a “very exceptional child [who was] bright, self-confident and very well attached to her parents”. As such, he thought that [X] had “done very well [and was] a thriving child”, who had benefited from the current parenting regime, which involved significant levels of parenting from both her mother and father.
In most circumstances, Mr Rudzitis would be cautious about recommending a week about arrangement for a child of [X]’s age or a little bit older. He acknowledged that children of four and five have very different notions of time to older children, particularly the cognitive capacity to know when they will re-engage with their other parent. However, in this regard, Mr Rudzitis reiterated his assessment that [X] was “exceptional”, largely because of her intelligence and outgoing personality.
This assessment of her personality was the basis of Mr Rudzitis’ recommendation that the court should give earnest consideration to adding to the time [X] spent with her father immediately, so that a preparatory base could be laid for [X] to start a week about care arrangement, when she was about five years of age, at the start of the 2011 school year.
In his assessment, Mr Rudzitis reported that Ms Mellott indicated to him that [X] had exhibited few negative reactions to the current parenting regime. He observed [X] to interact with her mother and [Y] and [Z] in a comfortable and affectionate manner.
At her father’s home, [X] was observed to have the same level of self-confidence and close emotional attachment to her father, as she had displayed with her mother and half brothers. Mr Rivero was noted to consistently show “well established parenting skills [within the context of] demonstrating a strong emotional attachment to the child”.
In the clinical evaluation section of his report, Mr Rudzitis opined as follows:
“Despite her lack of normal kindergarten attendance, [X] appears to be socialized and above average intelligence child, well capable of taking advantage of private school attendance.
Given that the parties are heading towards equally shared parenting, the father’s requested extra Wednesday night in the second week of the roster should be implemented, thus establishing seven nights with each party over a fortnight as an equally shared parenting plan following on the present relatively successful six months status quo.
Week about of seven nights in one block should be treated with caution given the child’s age and need to settle in school and the parties final residence arrangements.
Special occasions and eventual school holidays should be shared equally.”[7]
[7] See Family Assessment Report at paragraphs 58, 60-61 and 63
Despite his written reservations about a week about regime, in his oral evidence, Mr Rudzitis deposed that, in his opinion, [X] would be developmentally and emotionally ready at five years of age to move to a week about arrangement, notwithstanding the fact that it was unlikely that she would have formally started primary school by this stage.
Essentially, Mr Rudzitis believed the attainment of a specific level of developmental maturity was a more important factor for [X], so far as the viability of week about care was concerned, than allowing her to first accommodate the transition to formal school.
In reaching this view, it seems that Mr Rudzitis was influenced by the fact that [X] would soon be starting at the Early Learning Centre, at [S] School and would move on to formal schooling in a cohort of children from the centre.
As has previously been indicated, Ms Mellott accepts Mr Rudzitis’ estimation that [X] is a bright and confident little girl. However, she is fearful that he may have overestimated her resilience. Ms Mellott does not mean this as a criticism of Mr Rudzitis. Rather, she asserts that he has not the same level of knowledge, about [X], as she does.
Although most parents would be delighted to hear their child described as “exceptional”, Ms Mellott characterised [X] as an “ordinary little girl”, the implication being that she was not always as confident and outgoing, as Mr Rudzitis had observed her to be.
Legal Principles applicable
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
As previously indicated, the parties in this case each seek that the presumption of equal shared parental responsibility should be applied to them and [X]. In these circumstances, I do not believe that it is appropriate for the court to look behind this shared position and determine whether the presumption is rebutted by any of the considerations outlined in s.61DA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from ss.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]
Determining [X]’s best interests – Section 60CC
[8] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect any child concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of that child having a meaningful relationship with each of his or her parents.
The parties have elected not to focus on previously raised issues of family violence. Accordingly, the beneficial aspects of [X] maintaining relations with each of her parents and the form by which this may best be achieved must be given pre-eminence by the court.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
When all is said and done, there is not a vast gulf between the respective positions of the mother and father. The differences between them are ones of emphasis rather than of intellectual concept or methodology. Both agree that [X] will benefit from having a meaningful level of relationship with both her parents, now and in the future.
However, the mother urges caution at the prospect of the court departing too quickly from a regime of care, which is by and large working and which gives [X] a comfortable and ample basis for an on-going relationship with each of her parents. On the other hand, the father advocates a quicker transition to what he sees as the statutorily endorsed optimal outcome for the care of children of separated parents.
However, at the end of the day, the distinction between [X] spending six days, as opposed to seven days, per fortnight, in her father’s care, must be slight indeed. Both outcomes will allow [X] to have a close and loving relationship with Mr Rivero. I am fearful that the distinction is of more importance to the parties themselves than to [X].
Smyth has written of the “custody wars” between parents, in which the divvying up of time with a child and how it is described becomes paramount to parents rather than the actual quality of the time which they spend with their children.[9] The peril of such “wars” is that the parents concerned become obsessed with the struggle with the other parent and oblivious to the consequences for the child involved.
[9] See Smyth Time to rethink time? The experience of time with children after divorce Family Matters No 76, Winter 2005 at p 4 referred to in Silas & Barry [2009] FMCAfam 448 per Altobelli FM.
Essentially Smyth cautions of the dangers of parents becoming fixated with the amount of time alone which they spend with their children and what it is called rather than focussing on the quality of that time in the sense of how such time is actually utilised in building up parent/child relationships.
For obvious reasons, where parents remain fixated on the strict allocation of time with their children between them, with one parent always wanting more time and the other wishing to place restrictions upon it, such situations are not generally amenable to a focus on what is likely to be best for the children concerned. Rather the parents are concerned more with their own sense of entitlement and what they perceive as being fair to them.
[X] is a young child. Necessarily, her relationship with each of her parents is not as yet fully formed. The years of early childhood are fundamental to the development of parental relationships, which are likely to be central in determining how individuals develop into maturity.
From her earliest stages, both parents have been significantly involved in providing care and nurture for [X]. Accordingly, the essential building blocks for her to have a meaningful relationship with each of her parents have been well laid. As a result, [X] is comfortable and happy in each of her parents’ care.
Again, I think that this will remain the situation if the current regime remains as it is for the next year or whether it is altered in the manner in which Mr Rivero seeks. In addition, in the context of the depth and intimacy of [X]’s parental relationships, I do not think much will be either gained or lost if the week about arrangement is commenced in either 2011 or 2012.
The exact division of [X]’s time with each of her parents is likely to be more important to Mr Rivero and Ms Mellott than to [X], provided she ([X]) is able to spend sufficient time with her parents to have a quality relationship with each of them. This concept of quality depends on both the context of the time spent between parent and child, as well as its quantity.
In Silas & Barry, Altobelli FM referred to some of the current social science and psychological perspectives on this issue. He quoted Smyth as follows:
“A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parents wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.”
In order to have a quality relationship with her father, I am satisfied that [X] needs to spend time with her father in a variety of settings. In addition, she simply needs to be with him. In Smyth’s expression, simply “hangout” with him so that the two can maintain and development their natural ease and empathy with one another.
I am satisfied that [X] and Mr Rivero will be able to maintain their comfortable and secure relationship with one another, based on mutual ease and familiarity, regardless of whether Mr Rivero’s position or
Ms Mellott’s position is ultimately adopted. I reiterate that the distinction between their respective positions is minimal.
Additional considerations
This is not a case which turns on [X]’s views or idiosyncratic preferences. The reality of her life is that she has spent significant periods of time with each of her parents, both before and after their separation [see section 60CC(3)(a)].
[X] has a close and loving relationship with each of her parents. It also seems to be the case that [X] has relations, on both her maternal and paternal aspect, who are anxious to spend time with her and extend and preserve relationships with her [see section 60CC(3)(b)].
In my view, it is likely to be important to [X]’s sense of identity that she gains a sense of where she fits in, in her wider family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[10]
[10] See Bright v Bright (1995) FLC 92-570 at 81,658
On her father’s side, [X]’s grandparents have played a significant role in parenting her to this stage. No doubt, it is Mr Rivero’s position that it will be easier for [X] to maintain relations with her paternal grandparents, if she spends more rather than less time with him.
[Y] and [Z] are also highly significant relations for [X]. For a large proportion of her life, [X] has shared a household with her two older half siblings. However, it seems likely that these various relationships will endure, regardless of what happens in 2010, in respect of the issue of Mr Rivero’s additional night. Certainly, when the seven day regime comes into place, I would expect that such a regime would enable the consolidation of [X]’s relationship with [Y] and [Z].
In mid 2009 Mr Rivero was impliedly critical of Ms Mellott for not being willing to encourage and support his level of relationship with [X]. This criticism arose in the acrimonious circumstances of the parties’ competing interim applications [see section 60CC(3)(c) & 60CC(4)].
At the time, I had reservations that the six/eight fortnightly regime would work.[11] However, to both parties’ mutual credit, the interim orders have been successful and [X] has thrived, both emotionally and developmentally under it.
[11] See Rivero & Mellott (supra) at paragraph 160
In all these circumstances, it seems to me that both parties are committed to ensuring that [X] has a close and loving relationship with the other parent and both wish to be as fully involved as possible in the exercise of all issues to do with [X]’s care.
The evidence indicates that both Mr Rivero and Ms Mellott are competent and committed parents, who are devoted to ensuring that [X]’s best interests are served. They are good and capable parents in every sense [see section 60CC(3)(f) & (i)]. In this regard, much thought has gone into considering the best educational outcomes for [X], both in the short and longer term. In addition the fact that [X] is doing so well is testimony to both parties’ facility to satisfy her emotional needs.
In June of 2009, I had some concerns about how well [X] would cope with moving regularly between her parents’ respective households, particularly given the level of acrimony between them. I accept Mr Rudzitis’ assessment that she has coped well with this regular transition. It would seem to me that moving regularly between her parents’ respective homes is likely to have become the reality of [X]’s life.
On this basis, Mr Rivero, supported by Mr Rudzitis, urges the court not to be unduly concerned by a modest change to [X]’s circumstances – the addition of the fortnightly Wednesday night – particularly given that this will be of assistance to [X] in adjusting to the week about regime, which both parties regard as inevitable in the longer term.
On the other hand, Ms Mellott urges caution in respect of foisting any unnecessary change on [X] at this stage, particularly whilst she remains a child of tender years. Essentially, Ms Mellott argues that there are significant risks in potentially “overloading” [X] with change, particularly in the context of her transition to pre-school, kindergarten and primary school [see section 60CC(3)(d)].
As I am at pains to point out, I do not underestimate Ms Mellott’s concerns, either in terms of their sincerity or validity. I acknowledge that [X]’s parents are the individuals best placed to assess how [X] will cope with any change in her circumstances. It is regrettable, in the extreme, that the parties have different views in respect of this issue.
Neither I nor Mr Rudzitis can know with certainty how [X] will react either to the additional Wednesday night or the week about care arrangement, either in the context of it occurring in 2011, when she is still in pre-school or in 2012, when she has started at primary school. However, the indications are that she is a resilient and confident child, who will take such a transition in her stride. However, at the end of the day, this cannot be guaranteed.
I cannot overlook [X]’s age [see section 60CC(3)(g)]. She remains a child of tender years. As such, she is vulnerable. In this context, I believe that I would be imprudent to easily dismiss Ms Mellott’s personal assessment of [X]’s disposition. As I remarked at the outset, my responsibility is to fashion an idiosyncratic outcome for [X], based on my assessment of her best interests. It is not my function to impose a formulaically derived outcome upon her.
In this respect, it seems to me to be inherently sensible and prudent for a regime whereby [X] sees each of her parents every two or three days to be prolonged for as long as is practicable. This will minimise the scope for [X] to fret for one or other of her parents. In my view, seven days is a long period for a five year old, no matter how emotionally robust and intellectually developed.
Given the success of the current broken fortnight regime, which arose against a background of significant dispute between the parties, I believe the court should approach the issue of discarding the regime with caution, particularly whilst [X] is developmentally immature. In my view, there are likely to be significant benefits for [X] in being able to see each of her parents every few days or so, whilst she remains young, particularly given the success of this arrangement.
Conclusions
In generic terms, I have come to the conclusion that it would be in [X]’s bests interests to spend equal periods of time with each of her parents. I have reached this conclusion because the reality of her life is that this is tantamount to what is occurring now and [X] is thriving in this regime.
In addition, both parents recognise that this will be the ultimate outcome in which [X] is cared for by them. The question for the court is the timing of this equal time arrangement and the manner in which it is brought about, given the significant divergence of opinion between the parents concerned as to this issue.
As the High Court has stipulated, satisfaction of the applicable statutory criteria, related to the overall feasibility of any equal time arrangement, is of equivalent importance to considerations of whether such an outcome is in the best interests of the child concerned. The various criteria of feasibility are set out in s.65DAA(5) of the Act. I take it that these criteria also apply to the objective practicality of the timing of an equal time arrangement.
Finality is preferable in children’s cases. It is desirable that arrangements for the care of children are stable, constant and predictable. Accordingly, it would be best for [X] if a long term timetable for her care can be fixed at this stage [see section 60CC(3)(l)].
The most fertile ground, in which a shared parenting regime is likely to flourish and grow, is where the parents concerned share common values and aspirations for their child and have an almost empathetic facility to cooperate with one another and anticipate the needs of their child and indeed of each other.
In such circumstances, the parties would almost certainly be able to reach acquiescence as to the timing of the necessary steps to reach an equal time regime and consensually withdraw from those steps if any of them miscarried so far as the comfort and security of the child affected was concerned. The description of such conditions, in adversarial proceedings such as these, can perhaps be criticised as being unrealistically utopian.
Regardless of that criticism, such circumstances are unlikely to exist between recently separated parents, particularly where both have made serious allegations about the behaviour of the other. Such parents are unlikely to like one another, let alone trust the other. As such, their resources, so far as empathetic cooperation is concerned, are likely to be extremely limited.
In the earlier interim decision, I wrote as follows:
“It would be simplistic for the court to expect that shared parental time arrangements could only come about organically or consensually. Necessarily these types of issue are likely to generate considerable controversy between the parties concerned. Is the fact that the parties parenting relationship is not of a type which is likely to be highly amenable to a shared parenting relationship sufficient reason for the court to rule out such an arrangement in any particular case, including at the interim stage.”[12]
[12] See Rivero & Mellott [2009] FMCAfam 640
I did not specifically answer this question, in the parties’ case, at the interim stage. The question remains to be answered, it being apparent that the parties are unable to agree on the term of any consensual implementation of a shared care regime for [X]. Rather, it is axiomatic that Mr Rivero wishes the court to impose his preferred regime on
Ms Mellott, before she believes it is appropriate for [X]. Of itself a likely source of friction in the parties’ relationship with one another.
Thankfully, at this stage, there are no indications that [X] is currently or likely to become a victim of the “divorce wars”, as earlier categorised by Smyth. However, I remain concerned that the argument between the parents, as to the appropriateness of a 6/8 day regime as opposed to a 7/7 day regime, is emblematic of a deep level of continuing dysfunction between them.
In this context, I am concerned about the possible consequences for [X] if she perceives her life, in early childhood, as being unduly compartmentalised between time spent with her mother and time spent with her father. The question for the court being “will a shared living arrangement in this parental context lead to an experience for the children of being richly shared, or deeply divided?”[13]
[13] See McIntosh, J and Chisholm, R (2007) Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research Australian Family Lawyer Volume 20 No. 1 at 14
As I say, the best means for [X] to perceive that she is “shared by” as opposed to “divided between” her parents is if the shared care arrangement is accepted by both parents, from the time of its inauguration and one parent does not feel that it has been imposed upon him or her in disregard of his or her feelings by the other.
Turning to the specific considerations raised by section 65DAA(5). Although it is uncertain precisely where Ms Mellott will live in future, it seems likely that she will choose to live in reasonable proximity to [B]. Accordingly, I do not think that purely pragmatic residential considerations rule out the equal time regime sought to be imposed by Mr Rivero [see section 65DAA(5)(a)].
To their mutual credit, the parties have successfully implemented the current regime for [X]’s care. This was after a very shaky start indeed. As I have previously noted, I was apprehensive at the prospects of the orders made on an interim basis being successfully implemented [see section 65DAA(5)(b)].
It is my finding that there remain many blocks and obstacles in the various channels of communication between the parties. Up to this stage, decision making in respect of [X] has been difficult and tortuous. It is only recently that issues to do with [X]’s medical treatment and education have been resolved. This resolution has required the assistance of lawyers to achieve.
To some extent, it is axiomatic that the parties lack capacity to implement the arrangement sought by Mr Rivero, by virtue of the fact that it is such a hotly contested issue between them. The parties lack sufficient facility in communication to be able to resolve the issue between them and compromise in respect of it. It falls to the court to determine the matter.
In common with the vast majority of parents, who seek adjudication from the court, in respect of arrangements for the care of their children, the parties in this case do not communicate well, at present. In most case, for obvious reasons, the circumstances surrounding parental separation are likely to lead to more rather than less potential for differences of opinion to arise between parents, in respect of arrangements for the care of their children.
Necessarily, nearly every case involving care arrangements for children, must involve some degree of tension between the parents concerned. I do not think that it can be the legislative intent that shared parenting be ruled out in all of these cases.
In Astor & Astor[14] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not to be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[14] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
I would anticipate that, as time passes and the issues surrounding the parties’ separation recede into the past, the parties will be able to communicate better. However, this cannot be guaranteed and my impression is that the parties’ facility to communicate with one another will remain stilted and so problematic for the foreseeable future.
As [X] grows older, her life is likely to become more rather than less complex. As she moves into preschool, she will have social engagements with her contemporaries. She will begin to engage in extramural activities. My impression is that she will enjoy a typical middle class childhood, replete with all manner of activities.
As a consequence, there will be the potential for more logistical issues, and disputes about those issues, to arise between the parties. [X] is likely to leave a toy or much cherished piece of clothing behind at one or other of her parents’ homes. Extramural activities will have to be fitted into [X]’s already complex schedule. Arrangements will have to be made, often without much notice, to accommodate these issues.
I am concerned that the parties do not have a finely honed capacity to resolve such future difficulties, which will inevitably arise [see section 65DAA(5)(c)]. In addition, I would anticipate that this capacity would be retarded rather than enhanced, if Ms Mellott feels that the father’s preferred regime has been forced upon her.
Mr Rudzitis is confident that [X] is travelling well emotionally and developmentally at present. This is also the view of both her parents, although Ms Mellott has some reservations about [X]’s resilience, particularly in the light of what she characterises as her ([X]’s) “intensive parenting, up to this stage”.
I do not dismiss Ms Mellott’s concerns. As such, although some level of experimentation is inevitable, in respect of a court ordered children’s order, in the sense that the court cannot know with certainty what the implications of that order will be for the child concerned, I believe that I must reduce, wherever possible, the prospect of any order made having some unanticipated consequence [see section 65DAA(5)(d)].
In this context, I am concerned that Mr Rivero may be unwilling, in future, to concede that any problems have arisen following the implementation of the regime, which he seeks. It seems to me to be unlikely that he would accept any submission from Ms Mellott in this regard.
Certainly, it seems to me unlikely that the parties would be able to resolve any such concern, about any perceived failure in the regime, if and when it arises, in a consensual manner. They have no capacity to implement a “step back”, if it is required for [X].
In my view, considerations of this kind, behove the court to take a cautious approach, particularly bearing in mind [X]’s tender years. Her age, not yet four years of age, is a factor which militates against a too hasty move to an equal time regime.
In my assessment, given these issues, it is currently not objectively practicable for an equal time regime to be imposed on the parties by court fiat, particularly bearing in mind the extent of time [X] is spending with her father, which will in any event ensure the maintenance of a high quality relationship between the two.
In my view, these practical considerations will be ameliorated by a brief hiatus before the equal time arrangement comes into place. The practical issues arising because of [X]’s age; her mother’s estimation of her overall resilience; and Ms Mellott’s apprehension about the regime. These issues are likely to ease over the next twelve to eighteen months.
For all these reasons, I propose keeping the current regime in place for the remainder of 2010, whilst [X] is in the pre-school program at [S] School.
Thereafter, it seems to me likely to be in [X]’s best interests that the extra Wednesday evening be added to the fortnightly regime, in preparation for a week about arrangement, at the start of 2011, when she has moved into kindergarten.
The logical conclusion of this process is that [X] should start in the week about regime, at the start of 2012, shortly prior to her sixth birthday, when she moves into primary school for the first time.
I appreciate that this is the regime advocated by Ms Mellott and it will leave Mr Rivero deeply unhappy. However, the fact remains that he will continue to spend a significant proportion of [X]’s time with her. As such, he will continue to build on his excellent level of relationship with her.
Without doubt, a maintenance of the current regime for the next twelve months or so will ensure that Mr Rivero continues to have a meaningful relationship with [X]. His relationship with her will be one that is not stilted or artificially confined. The two will continue to be comfortable in one another’s company, regardless of whether they spend one extra night together or not.
On the other hand, in my view, there will be considerable benefits, arising to [X], if there is a comparatively brief delay in moving to the regime sought by Mr Rivero. The chief of these benefits is that Ms Mellott will be more accepting of it and, as such, the parties are likely to move more quickly towards having a better mode of communication with one another and so a more developed facility to resolve the inevitable parenting issues, which will arise between them, as [X] moves from pre-schooler, to primary school student and on into high school and adolescence. The parties’ parenting relationship, ideally, must be suited to the “long haul” of parenting.
As I have already indicated, as [X] grows older, her life will inevitably become more complicated. As such, there will be the potential for more rather than less disputes between the parties. The greatest benefit for [X] is if the parties have some capacity to resolve these disputes and communicate about them, before those disputes become entrenched and endemic.
The arrangements, upon which the parties have agreed, for their respective holidays with [X], during the remainder of 2010 result in [X] spending roughly equal periods of time with each of her parents, in a variety of environments, which are likely to be interesting to a child of [X]’s age.
I am confident that, in future, both Mr Rivero and Ms Mellott will ensure that [X] takes part in appropriate holiday activities. In these circumstances, it is clearly appropriate that school holiday periods be divided, in seven day blocks, between the parties, from the start of 2011 onwards.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 15 March 2010
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