Rodgers and Howe

[2007] FamCA 190

FAMILY COURT OF AUSTRALIA

RODGERS & HOWE [2007] FamCA 190

FAMILY LAW - CHILDREN – With whom children should live – Best interests of children –  Both parents have re-partnered – Consent orders made in 2001 that the children live primarily with their mother – Allegations made by father in 2005 that the mother was in a violent relationship and that her new husband used illegal drugs – Recognition that both parents were capable and no evidence was provided that the drug use continued – Orders made to provide the children with more substantial time with their father but continue to live primarily with their mother

Family Law Act 1975 s 65DAA, 65DAC, 60CC

APPLICANT: MR RODGERS

RESPONDENT: MS HOWE

FILE NUMBER: CAF456 of 1996

DATE DELIVERED: 15 February 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: FAULKS DCJ

HEARING DATE: 15 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees

SOLICITOR FOR THE APPLICANT: Campbell and Co Lawyers

COUNSEL FOR THE RESPONDENT: Mr Nash

SOLICITOR FOR THE RESPONDENT: Farrar Gesini and Dunn

Orders

1. The son, born in January 1996 and the daughter, born in March 1999, will live with their father from the first week in any fourteen day period during school term from after school on Thursday until the following Tuesday morning when the father will return them to school.  The father will be responsible for collecting them from school and returning them to school unless the parents otherwise agree.  Otherwise, they will live with their mother.

2. The children's parents will have equal shared parental responsibility for the children.

3. Otherwise the arrangements set out in the orders made by Federal Magistrate Brewster on 26 June 2006 will apply between the parties and for the children.

4. Notwithstanding the children are with their father on a Sunday their father will take them to morning church service on that day, unless both parents otherwise agree.

5. It is noted in respect to the children’s attendance at church that it is not expected that the children will necessarily attend church during the school holidays when they are with their father and it is also expected that the mother will be flexible in her cooperation about the children not attending church on some occasions throughout the year.

6. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and of the consequences that may follow if a person contravenes these orders, and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

7. The matter is removed from the pending cases list.

8. All material produced subpoena which became an exhibit will be retuned by the Court at the expiration of the appeal period to the persons producing it as soon as practicable.

9. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

10. IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Rodgers v. Howe. 

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 456 of 1996

MR RODGERS

Applicant

And

MS HOWE

Respondent

REASONS FOR JUDGMENT

1. In this matter the parties come before the Court seeking a change in the arrangements in relation to their two children, a son, born in January 1996, who is now 11, and a daughter, born in March 1999, who will be 8 next month.  The present arrangements have been applicable for some time and involve the children spending from 5.30 pm during the week on Friday with their father until Saturday at 5.30 pm and during the second week of the two week cycle from 5.30 pm until Sunday at 9.30 am, and there are other arrangements about school holidays and other matters which are not the subject of contest before me, and were the subject of orders made by his Honour Federal Magistrate Brewster on 26 June 2006.

2. On 13 September 2006 the children's father filed an amended application for final orders seeking that the children live with him and have time with their mother from 5.30 pm on Saturdays until the commencement of school on Tuesdays.  Other matters would flow from that as originally set out in his Honour's orders.  This application appears to have been prompted by an alleged incident of violence and by the attendance of the police on the home of the mother.

3. There is also concern on the father's part that the mother's new partner has been using drugs and is continuing to use drugs.  In response the mother sought an alteration to the existing orders to provide that there should be a change to the time that the children spend with their father by way of removing any time on the second weekend in a fortnightly cycle and that the Friday at 5.30 pm be replaced with Thursday after school and that otherwise the father's application should be dismissed.  The mother seeks the parties should have equal shared responsibility and in fact that is not in dispute.

4. Briefly by way of background, the parties married in 1989, and separated in 1999.   The father is currently aged about 40 and the mother almost 35.  Both parties have re-partnered; the father in 2002, and the mother with her partner, which whom she now has a new child, L.   The proceedings before the Court have involved affidavits from the parties and from a number of other supporting witnesses on each side which have varying degrees of significance.  A Family Report was ordered and Ms C provided a lengthy report in which she set out the conversation she had had with each of the parties and the children. Significantly in relation to the children she records in paragraph 7.12:

   The children want the current arrangements to prevail.  There does not seem to be a convincing reason to reverse the current arrangements unless the evidence persuades the Court that [the mother’s partner] is currently using amphetamines or that violence in the [the mother’s] marriage continues.  There is no doubt that both of their parents are very committed to and concerned about [their children] and that both should share parental responsibility for them. Significantly altering the amount of time the children are with each of the parents would be unsettling for them and both would worry about their mother's feelings.

5. She goes on to say in paragraph 7.13:

   It would be of value to [the children] if their father were more involved in key aspects of their lives such as their schooling.  This could be achieved by [the mother’s] [sic] proposal that he have the children for two week nights a fortnight.   [The mother] favours the children having only part of each alternate weekend with their father returning to her in time for church on Sunday.  I would prefer to see the children having a three night weekend with their father and his family allowing them more time to relax in their father's home life.  The children could still participate in church activities with their mother and step-father during the alternate weekend and during the week.

6. The recommendation in paragraph 8.1 of her report was:

   That unless the evidence regarding any current drug use by [the mother’s partner] or about violence in the [mother’s] family is persuasive, the children live with their mother and visit their father for three nights every second weekend and for two nights in the off week and that [the father] have the children for half of each school holiday period.

7. In dealing with any child matter, under the new legislation I am to take account of a number of different matters.  Section 65D provides that I may make such order as I consider to be proper in the circumstances, however that broad approach is somewhat qualified by a number of other matters.  Section 60CA provides that the paramount consideration in determining whether to make a particular parenting order is the best interests of the child which must be the paramount consideration.  Section 65DAA provides that I must consider the question of equal time or substantial significant time with each parent if I have determined that there should be equal shared parental responsibility between the parents.

8. In this regard it is agreed that there should be equal shared parental responsibility between the parents, however the mere fact of that does not in itself provide that I should therefore move, either by presumption or otherwise, to the consideration that there should be equal time between the parents.  It is not necessary to apply presumptions for the Court to come to a conclusion that the parents should spend equal time or that there should be substantial and significant time.  It does not matter a lot, in many respects, what constitutes substantial and significant time.  The Family Law Act 1975 provides in its definition in s 65DAA that:

   A child will be taken to spend substantial and significant time with a parent only if:

   (a)       the time the child spend with the parent includes both:

   (i)       days that fall on weekends and holidays and

   (ii)      days that do not fall on weekends and holidays

   (b)the time that the child spends with the parent allows the parent to be involved in:

   (i)the child's daily routine and

   (ii)      occasions and events that are of particular significance to      the child and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

9. Sub-section (4) of the section provides that the preceding sub-section, which I have just read out:

   …does not limit the other matters to which a Court can have regard in determining whether the time a child spends with a parent will be substantial and significant.

10. Perhaps the significant omission from the definition that is set out above is any indication by the legislature as to what period would constitute "significant time" or "substantial time."  It would be fair to say I think, in the circumstances, that the proposal advanced by the mother would provide substantial and significant time with the father.  The proposal advanced by the father would not necessarily qualify in that regard however it is a matter of degree in each case. 

11. It is to be noted that in relation to either proposal, given the acceptance of the general terms of the orders made on 26 June 2006, that the children will spend a proportion of holiday time with each parent, will spend birthdays, Christmas Day, Easter Sunday and Mother's and Father's Day with each of their parents in a way that would be a proper carrying out of “significance” in the definition in the section to which I have referred.

12. In this matter it is not appropriate that the children should spend equal time with each of the parents.  It is not appropriate simply because, among other things, neither of the parents believes that is the best thing for the children.  In this regard their judgment about this matter is a reasonable one.  The conflict between them is such that equal time would involve a higher level of co-operation between them than is reasonably expected, or could be expected or would be feasible.  It is important, however, that the children should spend time, and significant time, with each parent and in fact neither seeks to preclude that from occurring.

13. I do wish to draw attention however to one further section which tends to be important, I think, in the circumstances of this case.  Section 65DAC (and if one were to mark in parenthesis that it would be of great help if the Act were finally numbered in some sensible way rather than by ever increasing alpha numeric references,) reads as follows:

    The effect of a parenting order to provide for shared parental responsibility:

    (1)        This section applies if under a parenting order:

    (a)two or more persons are to share parental responsibility for a child and

    (b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.

    (2)The order is taken to require the decision to be made jointly by those parents.

    (3)The order is taken to require each of those persons:

    (a) to consult the other person in relation to the decision to be made about that issue and

    (b)make a genuine effort to come to a joint decision about that issue.

    (4)To avoid doubt this section does not require any other person to establish before acting on a decision about the child communicated by one of those persons that the decision had been made jointly.

14. Now what that says to me about this is that it is important for parents who are both in agreement that there should be equal shared parental responsibility, that it should be given a little more than lip service and [their agreement] does impose obligations by which they must be aware that they are to consult; they are to give consideration and; they are to try to reach a decision that is (in the words of the section) a “genuine effort” to come to a joint decision. 

15. It would be reasonable to say that whatever good things the father and mother have done in relation to their children have not included a recognition of the importance of dealing with that particular aspect of their parenting.  It is easy to sit outside the situation and make pronouncements about what parents should and should not do.  It is reasonable to say that the parents in this matter do not like each other, or do not appear to like each other. 

16. It is easy to say, well that is the way it is going to be for the future, however, there is an obligation which you cannot get out of as parents, which came about when the children were born and that is that you must accept the responsibilities of being parents, even if you do not like each other and you have to do something about it by working together to consult and to make decisions. That does not mean you have to do it every day.  It does not mean that you have to do it with a great deal of friendliness but it does mean that you have to do it. 

17. If you do not do it ultimately you will not suffer but your children will and they are the ones who are the important people.  When I am making a decision about what is to be in the children's best interests I am to take account of the matters that the Act sets out in s 60CC.  I will not go through those in the detail that has already been undertaken by Ms Rees, however I will point out the matters that I consider to be important.

18. The Act quite properly says that what the Court must first take into account is the primary benefit that is to be derived by the children in having a meaningful relationship with both of their parents.  Neither parent in this matter suggests that this should not occur.  It is also necessary for me to take into account as the primary consideration the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

19. There is no suggestion in this matter that either parent is likely deliberately to expose the children to physical or psychological harm.  There is no suggestion in this matter that either parent is likely deliberately to abuse or neglect the children but there is an allegation in this matter that the children have been, at least in the case of the children's mother and her partner, exposed to family violence.  I will return to that in a moment but I simply point out that that is one of the matters that I am obliged to take into account as a primary consideration.

20. The additional considerations include matters that have been dealt with in a substantial way by Ms Rees and by Mr Nash.  However, it is to be noted that the first of the additional considerations to be taken into account in the terms of the Act are:

    Any views expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child's views.

21. I am not quite sure what the significance of this might be, but when the Act was changed in July 2006 the reference to ‘children's wishes’, was removed and replaced with ‘children's views’.  I think if there is anything to be attributed to this it means that I am to take into account of something a little wider than simply what the children say they want.  That is reasonable.  Customarily this opinion from the children (or their views) are ascertained by their talking to an independent person such, as in this case, Ms C, and I have already read out that part of her report which deals principally with what the children want. 

22. There are however other matters which are part of their views which I think are worth referring to.  The children were found by the counsellor to be delightful children who were, and I am now interpreting rather than quoting from her, sensitive about what each of the parents wanted.  That is a matter for the congratulation of both parents.  To be frank, given the way you dislike each other so intensely, the fact that your children still care for both of you is really a matter for some congratulations. Either their genes are right or you are doing something in the process that causes them to understand that each of you loves them even if you cannot demonstrate any real degree of civility towards each other. 

23. What is however important for the parents to understand is that the children have both expressed in different ways the fact that they do not want you to be fighting.  This is probably the hardest thing that you can do for them.  It is easy enough to say, "I will look after them" or "I will pay for their schooling" or "I will buy them clothes" or "I will take them to ballet" or "I will take them to church".  It is all very well for them to obtain all of the values in the world but the thing they want more than anything else, is something you can give them.  It is that you do not fight.  It is curious but the one thing that is within your power to give them, you are finding difficult to do.  The children (and listen to this, this from a little mite such as your daughter): 

    When I asked her what she wanted [the daughter] responded, "I want it to stay like now and all be fair." (Family Report at [6.9]) 

24. Why is it that children, as young as yours, want to do things for their parents that the parents cannot do for them?  That is really the sad part about this.  They are the ones trying to do something for you two when you cannot work out what is going to be best for them.  So what we have in this situation in trying to interpret their views is to say that they want some peace.  They want things to stay basically as they are – and they want them to be fair.

25. Now, to stay as they are would not provide each of you with substantial and significant time, which is one of the factors which the Act now requires that I should consider and that is something that I will take into account in coming to my conclusions.  I am also to take account of the nature of the relationship of the children with each of you and it would be reasonable to say, without even pausing, that the children clearly, from all reports, enjoy a good relationship with each of you.

26. Equally the children enjoy a good relationship with each of your new partners or spouses, (the language is getting more and more difficult by the day), and there are good relationships with other relatives on both sides.  The details of these are not all that clearly spelt out to me but it is fairly obvious that the children have a wide network of support in different ways and times. 

27. Neither of you, in my opinion, has demonstrated to any marked degree, a willingness to really facilitate, encourage and develop in the children a relationship with the other parent.  I have already made comment about it and I do not want to emphasise it any further.  It is not something that I believe is relevant particularly to either parent.  It is relevant to both parents and is something to be deplored.  If there were to be a change for the children then it would probably be useful, if you are unable to recognise the need to be civil and reasonable and co-operative with each other, to minimise the number of opportunities for you to actually have to come into contact and hence in conflict.  I propose to make orders, as I foreshadowed right at the beginning, which would enable handovers essentially to happen at school so that there is a minimum of contact between you.

1. I believe that it is important, for this reason if no other, that the periods of time that the children have with each of you should be, so far as possible, continuing rather than in different groups so that there is an opportunity for the children to have a peaceful time with each parent and not to have to put up with the behaviour which sometimes the two of you have exhibited to each other. 

2. Unlike a number of case in which children travel very long distances to be with their parents, there are no particular difficulties or expenses relating to the sorts of arrangements that each of you propose for the children.

3. There are suggestions that each of you are to some extent, incapable of being as good a parent as you might be, because of a whole range of impediments.  I do not think that any of the evidence would suggest that either of you is anything other than ultimately a very capable parent, that is if you are able to put aside some of the animosity you bear towards the other parent. That is a matter within your control and something you can do something about in each case. 

4. What may pose a difficulty, if I were to accept one version of the evidence and that urged on my by Ms Rees, is that if or when the children, are living with their mother they may find themselves exposed (it is asserted) to drug use by the mother’s partner and violence on his part towards the mother, or generally perhaps.  I will return to this issue in due course.  That is a factor which may apply and is a factor I am specifically directed to take into account under the Act.

5. I am also urged by the Act to make an order that would minimise the opportunity for you to come back here.  I cannot stop you coming back. You can come back as long as you like.  I will be here.   I will look after your matters.  If you have got any money left, you can have lawyers if you have not I guess you will not.  The plain fact of the matter is that it is your responsibility to make this thing work.  If you do not make it work.  Your kids are the ones that suffer.

6. Now let me turn to the issues that seem to occupy everyone's time.  The assertion of Ms Rees which comprised a whole range of things in a number of documents tendered as exhibits was that the mother’s partner has been responsible in the past for acts of using drugs and/or acts of violence.  There is no doubt.  It is a clearly accepted fact that he was.  The real question is, is he still continuing to use drugs and is he still continuing to commit act of violence or, and – probably more importantly for the future – is he going to do these things while they will have an effect on the children.

7. The answer to the last question of course that none of us knows – apart from possibly the mother’s partner who is in the best position to make a guess about it.  None of the rest of us can predict the future with any certainty.  Generally speaking we say in courts of law, that if something happens over a long time in the past then you can reasonably predict that it is likely to happen in the future. That is the usual way in which we make these guesses about the future.  However, it is by no means the case that simply because something has happened in the past that it must necessarily happen in the future.

8. If I examine the realities in this matter, they are these.  First, there is no doubt that the mother’s partner has, in the past, engaged in drug use to an extent that must have been detrimental, not only to him but to those around him.  Second, the mother’s partner and the mother have been involved in a number of violent incidents sufficiently serious to require the police to be called.  People say and do things in moments of stress.  It may be in moments where the stress is induced by drug use or whatever else, I do not know, there is a certain temporal coincidence between some of the incidents and the use and the potential use of drugs.

9. Whatever may have been the situation they are incidents which must have been difficult and terrifying for the children.  It is said by Mr Nash, with some force, these are all things that have happened some 16 or more months ago and there is no evidence that they are happening, or have happened since, or are likely to happen in the future.  Leaving aside the impossibility of predicting with precision what will happen in the future, Mr Nash's assertion that nothing has been proved about the most recent period is reasonably sustainable and I think I could find with some confidence that there has been no such incident at the present point.

10. The use of drugs by the mother’s partner is an interesting question because in part it might have been resolved if the parties had adopted an approach that each of them seems to have urged on the other at different times but never at the same time, and that is that there should be an appropriate and effective way of testing the use by the mother’s partner of drugs.  This apparently included (although it was a matter that I was unaware of and I would tend to query its efficacy) that one of his hairs could be examined and if he had used drugs.

11. This is something that the father urged upon the mother and her partner.  The mother and her partner initially resisted and when finally they were prepared to do it the father seems to have lost interest in it.  It might be said by those who are cynical that the father, if he was all that concerned, would have pressed this home and there would have been evidence before this Court of what would have been the result of the testing.  It might have been said that if the mother and her partner had been genuine about their concern in proving the mother’s partner was not a drug-taker that they would have accepted the father’s original invitation to have the testing done.

12. Cynicism left to one side we did not have the opportunity in these proceedings of determining clearly and unequivocally whether or not the drugs were used.  In my opinion it is more likely than not, and that is in essence the test that I have to apply in coming to a conclusion, that is on the balance of probabilities it seems to me more likely than not that the mother’s partner has not used drugs in the last 16 months.

13. Even if I come to that conclusion Ms Rees urges upon me that the proceedings in this Court are nevertheless to be dealt with under a different criterion which is that if a Court cannot conclude that something did happen but that nevertheless there is an unacceptable risk to a child that the child might be exposed to abuse, then the Court should make such order as will ensure that the child is not subject to that abuse.  I do not pretend that that is an accurate summary of the High Court's determinations in M v M ((1988) 166 CLR 69) and B v B [Access] ((1986) FLC ¶91-75) but nevertheless it summarises them to some extent.

14. This does not mean, however, and I think should not be taken to mean, that there is a different standard of proof, required or applicable in the circumstances where it is asserted that children might be subject to some form of abuse.  I have used the word "abuse" because that is what the original decisions referred to.  In effect, Ms Rees is urging upon me that I should come to a conclusion that if the children would be likely to be subjected to violence, that the same test should also be applicable.

15. I do not believe that necessarily follows but I think that wherever possible a Court should, if it can, make a finding based on the evidence before it – based on the appropriate standard of proof.  I have made that determination based on the evidence as I see it.  Nevertheless, if the proposition contended for by Ms Rees were applicable in this case, I want to make the following short comments.

16. First, in determining whether or not there is an unacceptable risk, in part the Court's function is to determine the extent and the effect that the conduct that is feared would have upon the children.  If, for example, the likely consequence of something occurring was the death of a child then this would be an unacceptable risk, even if there was but a very small chance that might occur.  If, on the other hand, the consequences would be unpleasant but not otherwise damaging then the Court may, in an appropriate case, perhaps take a different view about the nature of that risk.

17. In this situation let us assume for a moment that there is an applicable principle of unacceptable risk.  If the mother’s partner were to take drugs in the future or if either independently or in a combination with that, he were to exert violence upon anyone, the most likely recipient of his violence, if past history is the gauge is the mother.  That is a highly unacceptable arrangement so far as the children are concerned but it is not (and it has not been suggested by anyone in these proceedings) likely that violence would be directed to the children direct.

18. It does not excuse, under any circumstances, any amount of violence.  There is no acceptable level of violence.  The fact that a person is violent is in itself a disqualifying factor for the parent simply because it provides an inappropriate model for children as to how conflict might be resolved. 

19. Leaving that to one side it would seem to me that I then have to look (if I am to determine what would be the result of these consequences) to what the parents suggest.   

20. Even allowing for the most extreme version of the facts in accordance with the father’s fears (and I accept they are genuine concerns on his part) he does not suggest the children should not spend fairly substantial time with their mother.  Admittedly the more time they spend in circumstances where there might be some element of risk obviously the more likely it is that what is feared will occur would occur. Nevertheless, this is not a situation in which it is submitted that the conduct of concern would preclude the children from spending any time with that parent.  Hence his judgment (and he is the person who is in a good position to judge what his children need and require; so far as their own safety is concerned) is that they should spend time with their mother.

21. I note also that notwithstanding that he was aware of these concerns some time in the past he did not immediately (and this is not a criticism of him, it is a comment on the degree of risk involved) take action to do something about restricting the time that they spent with their mother or indeed trying to preclude them from having any time at all with her.

22. Accordingly, in my opinion, for those reasons there is no justification on the evidence before me or even on the question of unacceptable risk, if it were to apply – and I do not believe that it does – that I should necessarily preclude the children from having reasonable and substantial time with their mother and I so find.

23. That leaves, however, the question of what would be the better arrangement, or the best arrangement in the children's best interest in this matter, the time that they spend with each parent.  The proposals that each of the parents advance has elements of what might be appropriate. 

24. First it is to be noted that in their original proposals neither parent sought that either parent have a full weekend with the children.  The proposal by the mother was that the children should spend between Thursday at 5.30 pm until Sunday at 9.30 am on one day in the weekend and some other time with their father as well as holidays and special days.

25. The father proposed the children should spend from Tuesday evening, say at 5.30 pm, until Sunday morning in each week with him, which would be a very substantial change from the existing arrangements.  There is nothing, in my opinion, to commend the proposition that the changeover should be at 5.30 pm, apart from the opportunities for developing further disputes between the parents.  I indicated at the start that it seemed to me that handover should be at the children's school and I propose to make orders that will do that.

26. I am also unconvinced, notwithstanding that I have listened to the arguments that each of the parents have put forward very carefully, that the children should not, in effect, have time that they can spend with both their parents on weekends.  I recognise that each of the parents is seeking an arrangement which would provide, and has worked for some time, a split arrangement and the father says (eloquently) when he spoke about  it in the witness box:

    This has worked, we are used to it.  The children are used to it.  We don't particularly want to change it. 

27. I am also conscious of the fact that the children say they do not want a change from the arrangement at present either.  Nevertheless, it does seem to me that there is an advantage, given the fact that at the moment at least the parents cannot reach any sort of sensible arrangement between themselves in having a fixed period for the children to spend with each parent rather than breaking it up with additional nights in the separate week, or what is commonly referred to as the ‘off week’. 

28. So I think that the arrangements should be that the children spend time with one parent, in this case let me start with the father, straddling the weekend and notwithstanding that it would represent a more significant change in the arrangements than had previously existed, I think it should be on the basis that the children spend from Thursday evening with their father until the following Tuesday morning.  This is a fairly substantial change in the arrangements that are involved.  They should spend the rest of the time with their mother.

29. However, notwithstanding the father's statement about the matter, it seems to me that the children should, during that period unless the parents otherwise agree, the children attend church on Sunday morning, as that has been part of their lives now for some time.  The arrangements about other periods for the children will remain as they are at present.  This arrangement will minimise the changeovers for the children. 

30. It will provide, as the Act requires, that the children spend some school time with their father in the latter part of one week in a fortnight, which means that school projects and other factors that have to be finished by the end of the week will become part of his responsibility as well as the mother's.  It will mean that he will spend a Monday with the children in every fortnight which means that he will have to cope with getting them off to school on the Monday and ensure that the start of the week his part of his experience with the children as well.

31. This is an opportunity for each of the parents to accept responsibility.  I accept the assurance from the mother that she will ensure that the children attend other events in the week that they are with her and I encourage both parents to look at the words (not take them home and put them under your pillow) but take to heart the words of the Act which say that you will not make arrangements of a long-term nature about the children without at least consulting with each other.  It would be a mean-spirited act for either or both of you to fill up the children's week with activities so that it would be inconvenient to the other parent.  It may be very satisfying temporarily but will not do either of you any good in the future, or the children. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  14 March 2007