Roger & Page - [2007] FamCA 1113

FAMILY COURT OF AUSTRALIA

ROGER & PAGE

[2007] FamCA 1113

FAMILY LAW – CHILDREN – With whom a child lives - whether children, aged 4½ and 7, should live with both parents on an equal time basis.

FAMILY LAW – CHILD SUPPORT – claim by husband that wife is estopped from pursuing arrears of child support by virtue of a promissory estoppel

Family Law Act 1975 (Cth) ss 60B, 60CC, 60I, 61DA
Child Support (Assessment) Act (Cth)

Dylan & Dylan [2007] FamCA 842

APPLICANT:

Mr Roger

RESPONDENT:

Ms Page

FILE NUMBER:

HBF

2006

DATE DELIVERED:

20 September 2007

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Trezise

SOLICITOR FOR THE APPLICANT:

A T Legals

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

PWB Lawyers

Orders

THAT all previous parenting orders with respect to the children are discharged.
THAT the wife and the husband have equal shared parental responsibility for T … born … December 1999 (“[T]”) and A … born … November 2002 (“[A]”) (called collectively “the children”).
THAT the children live with the wife, except as is otherwise provided in either these orders or agreed in writing between the husband and the wife.
THAT the children live with the husband as follows:-
(a)from after school until the Saturday (in the middle of the school holiday period) for each of the school holidays at the end of the first and second Tasmanian school, so that the children spend the first half of each of such school holiday periods with the husband and the second half with the wife;
(b)for the first half of the Easter school break in even numbered years and the second half in odd numbered years;
(c)from after school on the last day of the third term of the Tasmanian school holiday period (Christmas/New Year holiday) until 2.00pm on Christmas Day, in the even numbered years on which the Christmas Day falls;
(d)from 2.00pm on Christmas Day to 12.00 noon on the following New Years Day in odd numbered years on which the Christmas Day falls over the Christmas/New Year holiday;
(e)in years where the children live with the husband from Christmas day to New Years Day, they shall live with the husband each alternate week commencing at 10.00am on 8 January and expiring at 10.00am on 15 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to this order. The children to be returned to live with the wife for the three days prior to commencement of the first term in each school year.
(f)If the children are living with the husband from after school to Christmas Day under these orders, they shall live with the husband from 12.00 noon on 1 January in such year until 10.00am on 8 January and continuing each alternate week in like form for the remainder of the Christmas/New Year holiday, subject to this order. The children to be returned to live with the wife for the three days prior to commencement of the first term in each school year.
(g)During school term:
i.The consent arrangements that were in place at the date of hearing shall continue for the final school term of 2007. In respect of that arrangement, I give the parties and/or the Independent Children’s Lawyer liberty to apply on 7 days notice for the purpose of putting in place formal orders for that period, if necessary.
ii.From the commencement of the 2008 school term, the children live with the husband from after school Thursday until the commencement of school the following Tuesday, each alternate week. Such times to commence the second Thursday after the start of school terms one and three and the first Thursday after the commencement of term two.
THAT in the event the children would otherwise be living with the husband on Mother’s Day, then the time the children live with the husband shall end at 5.00pm on the Saturday before Mother’s Day and recommence after school on the following Monday.
THAT in the event the children would not otherwise live with the husband on Father’s Day, they shall live with the husband from 5.00pm on the Saturday prior to Father’s Day until the commencement of school the following Monday.
THAT the children shall live with their respective parents on such parent’s birthday. If such birthday is a school day, then from after school on that day until commencement of school the next day. If such day is a weekend, public holiday or pupil free day, from 12.00 noon to 6.00 pm on that day.
THAT both parties shall independently attend the Parenting after Separation course conducted by Relationships Australia (or similar) and complete such course within 6 months from the date of these orders. Each party shall be responsible for his or her costs for attendance at such course.
THAT pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DECLARED THAT the arrears of child support pursuant to Child Support Assessments from the date of separation to 31 January 2007 amounts to $2,102.58.
IT IS ORDERED:
THAT the husband pay to the wife such arrears within ninety (90) days from the date of this order.
THAT both parties be given liberty to apply in relation to these arrears of child support.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
I DIRECT that counsel for the wife forward to the General Manager of the Child Support Agency a copy of the reasons for these orders together with a copy of the husband’s affidavit sworn and filed 18 January 2007 with particular reference to annexure “B” to the affidavit and the comments made by me to that issue in these reasons. This is a direction pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”) and the immunity created by ss 121(9) of the Act in respect of this particular disclosure extends to the wife, her counsel and the General Manager of the Child Support Agency.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage counsel to attend

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Roger and Page.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Mr Roger

Applicant

And

Ms Page

Respondent

REASONS FOR JUDGMENT

Indrodcution

These are proceedings between the husband and the wife which relate to parenting issues and child support.

Parenting Issues

The parties have two children, T aged 7½ and A aged 4½. The parties agree that the circumstances are such that there ought to be an order for equal shared parental responsibility. On the facts of this proceeding and having regard to the best interests of the children, the presumption under s 61DA of the Family Law Act 1975 (Cth) (“the Act”) should apply. The order regarding equal shared parental responsibility will be made by consent and there is agreement between the parties that the parenting orders should be expressed as live with/live with orders.
The issues regarding parenting are relatively narrow but both parties are entrenched in their positions. The parties agree that the present arrangements for the time the children spend with each parent should continue until the end of term 3 in 2007. That approach is consistent with the best interests of the children.
The husband wants orders that the children live with him on a fortnightly basis as follows:-
(a)in the first week from 3.00pm Wednesday to 9.00am Friday;
(b)in the second week from 3.00pm Wednesday to 3.00pm Monday;
(c)from 12.00 noon on Father’s Day and on the husband’s birthday until 9.00am the following day;
(d)that in 2008 and each alternate year thereafter from 3.00pm Christmas Eve until 3.00pm Christmas Day;
(e)in 2007 and each alternate year thereafter from 3.00pm Christmas Day until 9.00am on 27 December;
(f)such alternate or additional times as agreed between the wife and husband.
The husband proposes that these orders continue throughout the year including holiday periods.
In addition, the husband seeks orders that T spend one week in each of the first term school holidays and summer school holiday periods with his paternal grandparents and that in 2008 A do likewise.
The wife seeks orders that the children live with the husband:-
(a)in week 1 from 8.30am Thursday to commencement of school the following Monday and each alternate week thereafter;
(b)in week 2 from 8.30am Thursday to commencement of school Friday and each alternate week thereafter;
(c)in 2008 and each alternate year thereafter from 4.00pm Christmas Eve until 12.00 noon Christmas Day;
(d)in 2007 and each alternate year thereafter from 12.00 noon on Christmas Day until 9.00am Boxing Day;
(e)for one half of the school holiday periods, at times to be agreed in writing no later than 30 November each year, on the condition that the husband obtain leave from his employer and is able to personally supervise the children whilst they are in his care;
(f)Father’s Day from 12.00 noon to 4.00pm;
(g)on the children’s birthdays at times to be agreed;
(h)such other times as are agreed between the parties.
The wife seeks a further order that if the parties are unable to agree on matters they are to attend the Family Relationships Centre for mediation.
In relation to the wife’s final order I had considered making an order along those lines however the Act is now structured so that the parties are obliged, under s 60I, to endeavour to attend some form of dispute resolution before commencing proceedings. The wife’s proposed order is therefore unnecessary.
The present arrangements for the children are that they are collected by the husband each Thursday morning at 8.30am and T is taken to school and A is taken to childcare. The children spend Thursday night with the husband. T is taken to school by the husband Friday morning and A is generally returned to the care of the wife that morning. The children spend Sunday night of the first week with the husband and remain in his care until the next Monday. The children are next in the care of the husband from the following Thursday until Sunday.
The issues between the parties with regard to parenting are whether the children spend equal time during school term with each parent, rather than significant and substantial time, and how that time is structured.
As to school holidays there is not an issue that the children spend one half of the school holidays with each parent. The issues are rather how that time is structured and whether the husband needs to be on leave when the children are with him. There is also an application by the husband for specific orders providing for the children spending time with their paternal grandparents.
There is an issue between the parties in respect of changeovers, as, on the evidence of both parties, changeovers are currently stressful for the children. The parties are able to manage moving the children’s possessions between themselves without disharmony and without a bag being taken to and left at school.

Child Support Issue

There is an issue about child support, the wife claims that there are arrears of child support of some $2,528.43 which has recently been reduced by $425.85 by the husband, leaving a balance of $2,102.58. There is no issue that, under the assessments from separation to 31 January 2007, this calculation is correct. Counsel for the husband conceded that the calculations (subject to the repayment) as set out in annexure “C” to the wife’s affidavit sworn 1 March 2007 (the wife’s March affidavit) are correct. However the husband says that an agreement was entered into between the parties in August 2005, at or shortly after separation, which provided the husband’s child support liabilities would be limited to $191.45 per week. The wife denies that such an agreement is in place. The parties both say that there is an agreement that the child support ought to be reduced by $13.55 per week to cover medical insurance and special dietary requirements for one of the children but there is an issue as to whether there was an agreement by the wife to accept less child support than that assessed by the Agency.
The alleged agreement was not registered in court and nor is it registered or accepted under the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”). It is argued by the husband that this is an unregistered agreement and that the wife is either estopped from claiming the arrears or has waived payment of such arrears.

Background

In these reasons a statement of fact constitutes a finding of fact unless otherwise indicated.
The husband is aged 38 and he is in good health. The wife is aged 38 and she is in good health.
The parties commenced cohabitation in 1993 and married in March 1995. The marriage still subsists.
T and A are the only children of the parties and there is no evidence that there are any other children of the parties or to whom the parties have responsibility. There is not evidence that the parties have been in previous relationships from which they bear responsibility for maintaining any other persons.
The parties separated in August 2005.
The circumstances of the separation were emotionally difficult for the parties and for the children in terms of the wife leaving the marriage and were particularly difficult for the husband as the wife entered into a same sex relationship with CC. The wife continues with that relationship although the wife and CC do not live together full time. They spend about one to three days and nights per week together. CC is part of the fabric of the wife’s day to day life and is involved in assisting the wife in parenting the children when they are in the wife’s care.
Neither party makes significant criticism of the parenting of the other party in terms of their care of the children. Both agree that the children have and will continue to have the benefit of a meaningful relationship with both parents under which ever set of orders is adopted. There is no issue under s 60CC2(b).
There is an issue as to the views expressed by the children and the weight the Court should give those views.
Both parents agree that the other is a good parent and that the children are generally thriving under the present arrangement, except insofar as changeover is concerned which is difficult from time to time.
The conflict as to the structure of the orders, school holidays and the additional two nights is such that there is an issue as to the willingness of the children’s parents to promote the relationship between the child and the other parent although there is no issue that there will be a continuation of a close and continuing relationship between each of the children and their parents.
The wife says that the impact of an equal parenting time regime will have a detrimental effect on the children and the husband says that it will be for the benefit of the children.
There are no issues regarding ss 60CC(3)(c), (g), (h), (j), (k) or in relation to matters set out in ss 60CC(4) and 4(a). The substantive issue is whether the time the children live with each parent ought to be equal or significant and substantial and how that time ought to be structured.

The Evidence and Discussion

The husband relied upon affidavits filed by him on 28 March 2007 (“the husband’s March affidavit”) and an affidavit filed 18 January 2007 (“the husband’s January affidavit”) and the husband’s affidavit filed 18 December 2006 as to paragraphs 1 to 34 (“the husband’s December affidavit). Paragraph 27 of the husband’s January affidavit was not read.
The husband relied upon an affidavit of Dr M which was read into evidence without challenge. Dr M’s evidence was that the husband’s working hours are divided into 7.6 hour shifts between the hours of 7.00am and 7.00pm and that in so far as the husband is concerned these are flexible.
The husband was cross-examined in relation to his evidence. He was not an impressive witness. He prevaricated in terms of his evidence as to his views of CC and was fixed in his views regarding the children spending equal time with him.
As affidavits in these proceedings had been filed some months before the hearing, leave was given for the parties to provide updated evidence, which he did by giving oral evidence. In addition the husband’s December affidavit was relied upon with regard to paragraphs 1 through to 34.
The wife relied upon her affidavits filed 2 February 2007 (“wife’s February affidavit”) and 2 March 2007 (“wife’s March affidavit”). In addition she relied upon an affidavit of CC filed 2 February 2007. The last sentence of paragraph 14 of CC’s affidavit was not read. The wife gave additional oral evidence by leave.
There were 2 documents exhibited, one being a note from the wife’s employer detailing the wife’s employment with that organisation[1] and the other being a summary made by the husband as to child support[2].
[1] Exhibit “H2”.
[2] Exhibit “H1”.
The parties had had a dispute with regard to changeover for Christmas Day in 2006 whereby they had argued as to the changeover time and an interim order had been made by me in a duty list on 20 December 2006. That order was put before me.
The parties were not in dispute that there ought to be a changeover on Christmas Day, the dispute was confined to the time of changeover.
The husband gave evidence that he had four weeks annual leave (twenty working days). He is soon to be entitled to an additional 90 days of long service leave.
There was an issue as to his involvement with the children as asserted by the wife in paragraphs 12 and 13 of the wife’s February affidavit. The husband disputed her evidence. On balance, I prefer the evidence of the wife in that regard.
The wife said in her February affidavit;
[30]As time went by, the relationship between the husband became more distant. The husband would eat while I bathed the children and watched the 7.30 Report while I put the children to bed. I recalled making suggestions to the husband about spending more time with the children. He told me he saw the relationship as one where he went and earned the money while I parented the children. He did not want to be Mr Mum.
The husband rejected that statement and said he had an equal shared parenting role. He conceded that in 2004 he played hockey but denied that his involvement was less than that of the wife.
After observing both parties give evidence and considering all of the matters that came before the court and their respective demeanour in the witness box, on balance, I prefer the evidence of the wife in this regard. Although each party sees their own contributions from a subjective point of view, I am satisfied that the wife’s involvement in the care of the children was greater than that of the husband prior to separation.
The husband denied that he was resentful about the wife being involved in a sport and that he refused to let the wife take the car, as asserted by the wife in paragraph 47 of her affidavit. He said the wife had access to her sister’s car. The husband conceded he was sad at the time of separation but said he did not take time off work. Many of these issues are matters which arose at the time of separation but do not, in the long term, reflect on parenting.

The husband denied that his care of the children in so far as diet was a significant feature and denied that he was remote from the children. The orders that the parties are seeking are such that there is no utility in making a finding in regard to this factual issue.
He said the constant changeover was difficult for the children as they became distressed. The wife’s evidence was that this had been the case, but this has now improved. I accept her evidence. However, the conflict between the parties is such that if there were fewer change-overs where the parties were required to meet this would be of advantage to the children. There is general agreement between the parties that there ought to be a reduction in the interchanges between the parties. This is a concern by me that these children are learning to live in long term conflict between the parents, that cannot be in their overall best interests. However, the changeover times can be managed without necessarily putting in place equal time
The husband gave evidence, and I accept, that he was and is significantly involved in the children’s lives.
The evidence of the husband is that to date A has been in child care on Thursday mornings and has been cared for by the wife on Fridays. He agreed that he had opportunities to have A each Thursday but had chosen not to, the reason he did so was he believed that it was good preparation for A’s school, he confirmed that A was with the wife each Friday which enabled him to work. The husband was able to have A on these occasions but chose to go to work instead. The husband did this so that he could have his time with the children structured in such a way as to limit the extent of time in which they have the opportunity to interact with CC.
The husband does not like CC and his answers to questions in relation to her showed his antipathy to her. In cross-examination he initially described her as “the wife’s friend”. He said the reason he did not like her was because she had allegedly lied to him and his view was that she played a significant part in the relationship breakdown. In his affidavit material he went further, at paragraph 45 of the husband’s January affidavit he said:
[45]I do not approve of the boys exposure to [the wife’s] relationship with [CC]. I am of the opinion that [CC] is trying to adopt a parenting role with the children through the provision of gifts and involvement of parenting activities such as bathing, meals, overnight trips and putting to bed. I have a greater right to parent the children than [the wife’s] partner does. [CC] regularly sleeps at [the wife’s] house when the boys are not with her. According to [the wife], [CC] has a previous history of recreational drug use and promiscuity. I want to minimise their exposure to her influence by maximising the time the boys spend with me. Equal residential time with me will provide greater balance for the boys in terms of gender and role identification.
The husband asserted that CC had a history of recreational drug use and promiscuity. In respect of that allegation there is no probative material before me that CC is or was involved in recreational drug use and/or promiscuity. CC was cross-examined on behalf of the husband but was not challenged on that point. The evidence of the wife was that she was asked on one occasion about a night out at about the time of separation and she had given an answer to the husband “sex, drugs and rock and roll” which she said facetiously. The husband has treated this as a serious comment. I accept the wife’s version in respect of that response.
There is no evidence before me that the children have difficulties in terms of gender and role identification nor is there any evidence before me that the additional two nights per week will have any significant impact on the children in terms of gender and role identification.
The husband does not speak to CC and I accept CC’s evidence, as set out in paragraph 15 of her affidavit, as to his communication with her. It is understandable that the husband is upset that the relationship has broken down and about the circumstances surrounding the break-up, however, I find that the husband sometimes focuses on his own feelings and anger in preference to the needs of the children. This is particularly in terms of the interaction between himself, the wife and her new partner.
In oral evidence the husband did not overtly complain about the wife’s lesbian relationship. However, he annexed to his January affidavit[3] a letter from his lawyers to the wife’s lawyers on 27 February 2006 where it was said:-
“My client also does not approve of the boy’s exposure to your client’s lesbian relationship and what appears to be the significant parenting role her partner [has] in the boy’s lives. My client wishes to maximise his parenting role and influence in the boys by having equal parenting time.”
[3] Annexure “H”.
I find that the letter was sent on the instructions of the husband and reflected his views at that time. During cross-examination the husband said the relationship between the wife and CC “did not bother him as it was a matter for [the wife]”. I find that that evidence of the husband was not accurate.
Having regard to the findings in respect of the husband’s view of the relationship between the wife and CC and the children’s interaction with CC, I am satisfied that part of his motivation in having an equal time structure is his desire to keep the children away from CC and in response to his personal animosity towards CC .
There is no evidence before me that CC has a negative impact in relation to the children, quite the contrary, her evidence is that she has a good relationship with them. The negatives arising out of the wife’s relationship with CC arise as a consequence of the husband’s behaviour toward her.
The husband was cross-examined on his focus with regard to equal time with the children from the time of separation. He said that he always wanted equal time with the children, but he initially negotiated an arrangement where the children were with him for six days (five nights) per fortnight but that soon after that time he pressed for the children’s time to be divided absolutely equally between himself and the wife. The arrangements have not significantly changed from that time. The husband’s desire for equal time has remained strong since separation or soon afterwards. He has made suggestions to build up to that position and suggestions as to how it can be achieved in different ways but his fundamental position is that the children’s time should be divided absolutely equally between the parties and this has not changed.
His expressed reasons for this approach are set out in paragraphs 48 through to 57 of his January affidavit.
The husband says that the children, particularly T, have expressed a desire to spend equal time with him and that such an arrangement would be “fair”.
The wife has given evidence that T has made similar comments to her to that effect. The wife was an impressive witness who focused on the needs of the children. She gave evidence that T said that he “wants equal time because daddy had spoken to him about it”. I accept her evidence in that regard.
The children have spent significant amounts of time with the husband and the evidence of the husband and the wife is that the husband has from time to time engaged the children in discussions about additional time with him. On one occasion this took place in the presence of the wife. The husband sought to minimise his involvement in this type of conversation with or in the presence of the children, I have reservations about his evidence in that regard.
I find that the husband has enmeshed the children in his desire to have equal time with them. It is possible but unlikely that children of this age and maturity would express such particular desires without some intervention. I infer from the evidence that this desire of the children is a reflection of the desire of the husband. That causes concern in respect of the husband’s ability to separate his own needs and concerns from those of the children.
The husband complains that the wife has been inflexible with extra time with the children particularly with one on one time. The evidence is that the children were used for this purpose and that at least T was involved in this process. There have been six or eight occasions when there have been refusals for additional time and I accept the wife’s explanation in respect of those events.
The husband says that he was under a false impression as to the arrangements that he entered into with the wife in August 2005. He said he thought it was more time. Yet annexure “A” to the husband’s January affidavit shows that he was aware of the days and nights that the children were going to be with him and that he accepted that arrangement. He was not overborne by the wife.
It was only after the husband entered into communication with the Child Support Agency (“the Agency”) and he learnt that he needed an addition of sixteen nights to have “shared care” to reduce his child support liability. The number of nights then became an issue or a more significant issue and he sought to alter the arrangements that were put in place[4]. I do not accept that he was under a false impression about the time. I find that he changed his mind when he considered the impact of the arrangements on his child support obligations. It is of concern that the husband claims that an officer of the Agency allegedly said words to the effect;
“In her words, I am ‘mad not to increase’ my care level to shared care, seeing I am only 16 nights a year short…” and;
“To cover myself from future claims of underpayment, we need to sign an agreement that you are willing to accept the shared are rate of child support, even though the official CSA assessment is higher…”
[4] Annexure “B” to husband’s January affidavit
This conversation is alleged to have been with an officer of the Agency. To be fair to any such officer, I have only heard the husband’s version of the conversation. However, if it is correct an officer of the Agency (either individually or as a reflection of corporate culture or practice) is advising a payer to change children’s living arrangements to meet partisan financial objectives. That would be well outside the charter of the Agency and ought to be stopped. Children’s care must be determined by what is in their best interests having regard to Part VII of the Act, not as to what is the best financial outcome for one party or the other.
Such is my concern about this evidence I am directing and permitting counsel for the wife to forward a copy of these reasons and a copy of the husband’s January affidavit to the General Manager of the Child Support Agency with particular reference to this part of my reasons and annexure “B” to the affidavit.
The dispute in relation to child support and the relationship that this appears to have with the husband seeking orders for equal care have caused considerable conflict between the parties. In the recent decision of Dylan & Dylan,[5] Carmody J quoted the following paragraph from Smart and May which illuminates the nuance of this kind of conflict:
“Money issues lie at the root of a lot of family litigation. Fathers can see mothers as unjustly wielding the power they have over contact and bartering with parenting time in order to force them to pay more child support or to achieve a better property settlement. While mothers say that the fathers have little real interest in their children and don’t really deserve to have contact with them.”[6]
[5] Dylan & Dylan [2007] FamCA 842.
[6] Smart, C and May, V, “Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes”, (2004) Journal of Social Welfare and Family Law 347 at 352.
The husband has been focused on his child support liabilities. In that regard I reflect on the material the parties have set out with respect to child support dispute. I am satisfied that part of the reason the husband wants additional time for the children is to reduce his child support liability. In regard to that issue the position must be that a Court determines the living arrangements for the children focused on the needs and interests of the children and should not be driven by a particular party’s concerns about child support liabilities.
There is no doubt that the husband has flexible working hours but he has used those hours, in part, in a negative way to prevent the children spending longer periods of time with the wife. From time to time the husband allows holidays, such as the proposed holiday of the wife and the children to Queensland in the September 2007 holiday period. However, to set up the present structure he has used up significant amounts of his own holiday periods and has not taken the children for longer periods and seeks orders that the children spend time with his parents when they would otherwise be spending time with the wife and her extended family.
Subsequent to separation the husband had a two week holiday period which was acquired by putting in place arrangements before separation. The husband did not adequately explain why he did not use that opportunity to have the children for that two week period.
In many ways the proposals submitted by the husband seem to be an endeavour to control the life of the wife. This includes the break-up of the times, the continuation of the times over the school holiday period and the requirement that if the children have full weeks those full weeks be spent with the children’s paternal grandparents.
In cross-examination with regard to her communication with the husband, the wife said that she felt bullied by the husband. The husband is a determined person and is inflexible in terms of time with the children. There is poor communication between the parties and whilst the wife is from time to time fixed in her views, the husband is rigid in his views.
The wife works part time two days per week. Her working hours are 9.00am until 2.00pm on Mondays and 9.00am until 2.30pm on Thursdays. There is from time to time availability to do additional work although it is her wish to spend the time with her children. She likes the flexible and family friendly approach of her employer.

The relevant legal principles pursuant to the Family Law Act – parenting orders

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[7];
(a)   ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)      ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[7] Family Law Act 1975 (Cth) s 60B(1).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[8]:
[8] Family Law Act 1975 (Cth) s 60B(2).
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)      parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)      children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child have complete but several parental responsibility for such child[9]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 amendments”) and became operative on 1 July 2006. Section 61DA provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child.
[9] Family Law Act 1975 (Cth) s 61C.
A court must make a positive order or declaration to grant equal shared parental responsibility under s 61DA of the Act and in this case I will do so.
Once the question of parental responsibility is determined the court needs to then determine the question of with whom the child lives and/or spends time and the degree of communication a child is to have with another person[10].
[10] Family Law Act 1975 (Cth) s 64B(2) sets out the meaning of a parenting order and related terms.
In determining what orders it should make the court must regard the best interests of the child as the paramount consideration, but not the only consideration. The factors that the court takes into account in determining what is in the best interests of a child are set out in s 60CC of the Act.
Those interests are determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. In terms of the consent orders in these proceedings I have had regard to the relevant matters referred to under s 60CC of the Act.
To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.

Conclusions

The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In determining the bests interests of the children I need to have regard to considerations set out in s 60CC of the Act. As I have indicated earlier there are no issues about the considerations with regard to s 60CC(2). Whatever the outcome the children will have the benefit of a meaningful relationship with both parents and there are no issues of abuse, neglect or family violence.

Section 60CC(3)

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

I have had regard to the views of the children, particularly T. The views expressed by the children, T in particular, are that they want to spend equal time with the husband. Having regard to the findings I have made in this matter and to the age and maturity of the children I do not give their views significant weight.

(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

The children have a generally positive relationship with both parents, notwithstanding the finding that the relationship between the parties is marked by conflict and poor communications. The conflict is subtle. It is in the form of the husband not acknowledging CC at social functions and the husband’s family not acknowledging CC at social functions, as well as the children being indoctrinated with the husband’s view that anything other than equal time is inappropriate. The wife says she feels bullied and that that inhibits her communication with the husband, I accept her evidence in that regard. Since August 2005, communication between the parties has stalled and it remains poor to this time. This is apparent in the party’s inability to work out a time for changeover on Christmas Day 2006 and requiring the Court to make a determination over whether one party should have a three of four hour period of time with the children on that day. That conflict over changeover time on Christmas day continues.

The husband has the view that the wife is intransigent in not agreeing with his views. The wife has a view that the husband bullies her and as such will not engage him. This has an impact on the parenting of the children.
The arrangements that are presently in place will continue until the end of the 2007 school year. Both parties agree that that should be the approach I adopt. I determine that such an approach is in the best interests of the children.
From 2008 the changeovers will alter by virtue of the orders I am putting in place. Those changeovers will provide for less interaction between the parties and hopefully have less impact on the children.
In a recent paper Jennifer E McIntosh and Caroline Long observed with regard to children’s emotional well-being:
“… the date from the current study were explored to see what might amount to poor emotional functioning in children post court. Multiple regression modelling was used, controlling for whether the parent was applicant or respondent (respondent’s were significantly more likely to report negative mental health outcomes for their children). Of 192 variables explored in this study, the following five variables together best account for children’s poor emotional outcomes:-
1.The child was not happy with their living and care arrangements;
2.The parents relationship with the child has not improved post Court.
3.The child lived in substantially shared care (35% or greater).
4.The parents had concerns about the child’s safety when in the care of the other parent.
5.The parents remained in high conflict.” [11]
[11] McIntosh, J E & Long, C The Child Responsive Program, operating with the less adversarial trial; a follow up study of parent and child outcomes July 2007, Family Transitions, Carlton North Victoria at pp 16-18

In this case there is evidence that the children are unhappy with their living and care arrangements, albeit as a consequence of the husband’s involvement of the children in that aspect of the conflict. The children will live in substantially shared care and the parents will remain in conflict unless they adopt a different approach to each other. To that end I will order the parties to complete a post separation parenting course.
Having regard to all of the evidence I have a concern that an equal time order may lead to further conflict and the impact of the husband’s approach will be greater upon the children.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

In these proceedings both parents acknowledge the other as being a good parent. The wife has some minor criticism of the husband in terms of diet and seat belts. There is criticism of the husband in terms of his approach to equal time which has been articulated earlier in these reasons. The parties both display some limited flexibility in terms of the time the children spend with each of them. I have concerns that an overall approach of equal time would, in the particular circumstances of this case, lead to less flexibility rather than greater flexibility.
In 2008 A will be commencing full time school.
I do not accept the husband’s submission that the wife has not encouraged the children’s relationship with the husband or members of his family. The wife has given evidence, and I accept, that she has no difficulties with the children spending time with the husband’s family provided it is in the holiday time or other time when the children are otherwise with the husband.

(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Save for the criticisms outlined in these reasons both parents have the capacity to meet the needs of the children.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

Parenting orders can never be final in that the children’s circumstances change as do those of the parents. Arrangements will invariably need to alter as a consequence of these changes.
Courts should make arrangements to minimise the prospect of future litigation. I propose in this case to make an order that both parents attend a parents in conflict course conducted by Relationships Australia, or similar, in the hope that the parents will have better skills to manage conflict themselves rather than return to a court exercising jurisdiction under the Family Law Act.
I am also conscious that pursuant to the 2006 amendments the parties are required by s 60I to engage in pre-litigation dispute resolution processes before commencing proceedings.
This is a matter to which s 65DAA applies. The section provides that the Court must consider whether the children spending equal time with each of the parents would be in the best interests of the child.
There was no issue in this case that the children should spend substantial and significant time with the husband, the question is whether they should spend equal time.
There is a popular misconception that the 2006 amendments provide that the children spend half the time with one parent and have the time with the other. That is not the case. The legislation requires that the court consider equal time and substantial and significant time, having regard to the bests interests of the child. In doing so the court must consider the objects and principles set out in s60B and have regard to the considerations set out in s 60CC and have regard to those in the individual circumstances of the particular children and their family dynamics.
Equal time must be considered in terms of the needs of the children. Children cannot be regarded as pieces of property between the parties to be sliced according to the demands of one parent or another.
In this case I have considered whether it would be in the children’s best interests to spend equal time with the husband. Having considered all of the facts and circumstances and all of the findings in this matter I determine that it is not in the children’s best interests to do so. Without limiting the generality of what I have said and without focusing on any particular feature I make the following further observations.
The husband is in full time work and has had the opportunity of spending more time with the children (Thursdays and Fridays and perhaps his two week break since separation) but has chosen not to do so. The wife works two days per week. The arrangements in place are working for these children and a change to equal time may not, in all of the circumstances, be an improvement for them.
The husband is determined to have in place parenting arrangements put in place as a method of separating the children from CC.
The effect of the orders I am putting into place will mean that the children will spend equal time with each of the parties over the school holiday period. It will mean they will spend slightly more time with the wife during school term. Bearing in mind the conflict and poor communication between the parties it is my determination that that approach is in the better long term interests of the children than the equality sought by the husband.
In relation to the school holiday periods, the husband wants the children to continue in the arrangement as is arranged during school term. This would mean that neither parent would have the children in their care for more than five consecutive days. There is no reason why the children should not spend at least one week (and longer periods by agreement) with each of their parents during the school holiday period. The husband has regular holiday entitlements and has accumulated significant long service leave entitlements. The wife has structured her paid employment to be available for the children.
The wife seeks orders that the time the husband spends with the children over the holidays should only be time when he is on leave from his paid employment. The husband is anxious for the children to spend time with his family and has good leave entitlements. There is no reason why the children cannot spend one half of the school holiday periods with each of their parents and I will be making orders to that effect.
These orders will also deal with the concerns that the husband has with regard to the children knowing his parents. The husband can take the children to visit his parents at any one or more of the school holiday periods. The evidence is that the children get on well with their grandparents. I have not made specific orders that the children spend time with their paternal grandparents as the structure of the orders are such that such time can be accommodated in the times when the children live with the husband.
I have made no orders about the time the children spend with each parent on the child’s birthday. I was asked to make orders in that regard and I decline to do so. At some stage these parties will need to put in place some effective communication between them regarding parenting of the children, and this area seems as good as any as a starting point. If the parties are unable to agree about their children’s birthdays, the child would in any event have been with that parent either the weekend before or the weekend after such birthday.
The wife asked that I make orders to require the parties to attend at a Family Relationship Centre in the event that they are unable to agree on parenting issues. I decline to do so as the parties are bound by s 60I of the Act, which prevents a Court from exercising jurisdiction under Part VII of the Act unless the parties have complied with s 60I(8) or there is an exception under s 60I(9) of the Act.

Child Support.

In respect of the issues of child support the wife said that the agreement was that there would be a reduction of $13.55 per week from the child support to cover the cost of medical insurance and a share of goat milk, a special dietary requirement, for one of the children. She denied that there was an agreement that the child support would be accepted at $185.00 or $191.00 per week. The husband had asserted that an agreement was in place and that the wife was either estopped from seeking the arrears of child support or had waived her entitlement to recover those arrears of child support.
The assertion by the husband of such an agreement for a fixed child support level seems to be undermined by the hand-written document setting out agreements of the parties in August 2005 where it was said in regard to child support[12]:-
[12]Annexure “A” husband’s March affidavit.
Child Support
[1]Based on CSA estimation, it is agreed that [the husband’s] child support liability is $200.00 per week until child support assessment deems otherwise.
[2]From that [the husband] will deduct $20.00 per week for [the wife’s 50/50 share of Medibank Private.
[3]To that [the husband] will add $5.00 per week as 50/50 share of goat milk.
[4][The husband] will pay to [the wife] direct $185.00 per week each Wednesday by direct debit.
[5]For the first week [the husband] will pay [the wife] $90.00on Wednesday 10 August 2005.
[6]Any further expense of the children such as clothing, medical, schooling will be shared 50/50.
The husband asserts that this was an agreement binding the parties to that fixed sum.
An examination of the emails shows that that is not to be the case. An email sent to the wife on 23 August 2007 by the husband shows that the husband seeks to have the amount reduced as a consequence of his dropping to .08 full time employment and he seeks a further change in his email of 29 August 2007. The wife on the other hand confirms with the husband that the child support in September is $205.00 a week therefore the amount payable by him is $191.45.
There was some discussion about setting off some expenses with regard to a time share but no finalised agreement was made.
The husband complains that the wife did not tell him that there were arrears of child support and that he assumed that there would be no change to the so called “agreement”. However by email of 23 March 2006 the wife expressed to the husband the change in child support which would mean his liability would change. That change to begin with the assessment later in March.
The parties agreed with the figures set out in “annexure c” to the wife’s March affidavit.
I am satisfied that there is an unregistered child support agreement which reduced the assessment by $13.55 per week but there is no agreement that child support ought to be limited to $185.00 from 17 August 2005 to 21 September 2005 and $191.55 from 29 March 2006 to 16 August 2006.
Consequently I determine that the arrears of child support as at 31 January 2007 are $2,102.58. I will order that the husband pay that sum of arrears to the wife and that the parties have liberty to apply.

I certify that the preceding 118 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:

Date: 20 September 2007.