SADLER & HACKETT

[2014] FamCA 1188

FAMILY COURT OF AUSTRALIA

SADLER & HACKETT [2014] FamCA 1188

FAMILY LAW – CHILDREN – Interlocutory Application – where the children have meaningful relationships with both parents – children’s views – where the current shared care arrangement needs to be adjusted in order to relieve the children from changing homes every week and taking their possessions with them on a semi-permanent basis – where the parties’ emotions are still not contained – where, in the circumstances of early signs of parentification, an adjustment is in the best interests of the children – children to live with the mother – children to spend substantial and significant time with the father – where there is no evidence to rebut the presumption of equal shared parental responsibility – orders made accordingly.  

Family Law Act 1975 (Cth), ss 60CC

APPLICANT: Ms Sadler

RESPONDENT: Mr Hackett

FILE NUMBER: NCC 2485 of 2014

DATE DELIVERED: 12 December 2014
Ex tempore

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 12 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

SOLICITOR FOR THE RESPONDENT: In person

Orders pending further order:

1. That the parties have equal shared parental responsibility for the children Y born …. 2006 and F born … 2008 (‘the children’).

2. That the children live with the mother.

3. The children spend time with the father as follows:

   (a)Commencing in Term 1, 2015:

   (i)each alternate weekend from the conclusion of school on Thursday until the commencement of school on the following Monday, the first such time to commence on the first Thursday of each school term;  and

   (ii)from the conclusion of school on Thursday until the commencement of school on Friday the first such time to commence on the Thursday of the week 2 of each school term.

   with changeovers at the school.

   (b)       Commencing with the 2014 Christmas school holiday period:

   (i)for one half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

   (c)       At such other times as agreed in writing between the parties.

   (d)

   That time in school holidays in the first half shall commence at

   
   

   6.00 pm on the last day of school term and conclude at 6.00 pm on the mid-point day of the holiday period AND in the second half, shall commence on the mid-point day at 9.00 am and conclude at 6.00 pm on the last day of the period before term commences.

   (e)Changeovers for holiday periods, unless otherwise agreed, to be the mother to deliver the children to the home of the father at the commencement of each period and the father to return the children to the home of the mother at the conclusion of each period.

   (f)The children shall spend time with the mother at Christmas in 2014 by arrangement between the parties.  

4. The children shall have telephone communication with the father during term time on Monday nights to be initiated after 6.00 pm and before 6.30 pm by the father to a number to be advised by the mother, if not on the landline number.

5. Each party shall have telephone communication with the children during holiday periods on Monday nights to be initiated after 6.00 pm and before

   
   

   6.30 pm on numbers advised by each parent to the other.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadler & Hackett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2485 of 2014

Ms Sadler

Applicant

And

Mr Hackett

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in relation to two children.  There are no current orders in place.  The children are Y, aged eight, and F, aged six.  In summary, the mother proposes residence with her and time with the father four nights per fortnight.  That is, alternate weekends from Friday after school until Monday before school and one Thursday in the other week per fortnight.  The father proposes week-about care, which is currently occurring, with changeovers on Thursday.

2. The matter came before me in a duty list on 9 December 2014.  The parties and the children had been seen on 20 November 2014 for an assessment with a family consultant.  That Report was before me in the proceedings. 

3. The documents relied on were:

   (a)The initiating application of the mother, filed 23 September 2014; 

   (b)The response of the father, filed 30 October 2014; 

   (c)An affidavit of mother, filed 23 September 2014;

   (d)Two affidavits of father, filed 30 October 2014 and 4 December 2014.

History of relevant events

1. In 1992 the parties commenced a relationship.  In 1994 they married and began living together. 

2. In 2006 their first child was born, Y, and in 2008 their second child was born, F. 

3. In May 2014 the parties separated but continued to live under the one roof until August 2014.  At some stage during that period, the father commenced a relationship with his current partner. 

4. In July 2014 the parties sold the former matrimonial home, and in August 2014 the mother and the two children moved out of the former matrimonial home and began living with the maternal grandmother, where they have continued to live since.  The father has independent rental accommodation.

The Law

1. In dealing with parenting applications, the court is required to follow a pathway through the legislation.  First of all, each of the parents of a child who is not 18 years of age has parental responsibility for the child.  That is the case here. 

2. I am now asked to make parenting orders dealing with a variety of issues, including where the children will live and an allocation of parental responsibility. 

3. A presumption of equal shared parental responsibility arises when parenting orders are applied for.  In deciding whether to make a particular parenting order, a court must regard the best interests of the children as the paramount consideration.  That is a focus on the children and not the rights and interests of parents. 

4. Section 60CC of the Family Law Act 1975 (Cth) (‘the Act’) sets out the guidelines which a court must take into account when considering the best interests of children; I will shortly return to those matters.

5. The mother asks for equal shared parental responsibility, and the father is silent on that topic.  It is not opposed.  There is no evidence before me which rebuts the presumption of equal shared parental responsibility, and that order will be made.

6. When equal shared parental responsibility is ordered by the Court, the Court must then consider whether the children spending equal time with each of the parents would be in their best interests and reasonably practicable, and, if not, whether substantial and significant time is in the best interests of the children and reasonably practicable.  Substantial and significant time should include weekdays, weekends and holiday time, to enable a parent to be involved in the children’s daily routine.  In the event that substantial and significant time is not considered to be in the children’s best interests, then the court is at large to make whatever orders are appropriate on the particular facts of the case.

Section 60CC(2)(a) and (b) – the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. The evidence supports what the parents told the Family Consultant, that they accept that their concerns which, in the case of the mother, were concerns around the father’s drinking, the leaving of explicit sexual images in the computer at home, and the father’s partner allegedly smacking the children or at least F, and, in the case of the father, that the mother having initiated angry confrontations with him in front of the children or one of them, and not concealing her dislike of his partner.  The parties acknowledged to the Family Consultant that those concerns did not amount to unacceptable risk, and I agree.

2. The children are reported to have presented as well adjusted children, who appear to have managed the separation of the parents and the subsequent changes in their lives reasonably well. 

3. It was common ground, and also the assessment of the Family Consultant, that the children had positive relationships with both parents.  In this particular situation, the children have not been exposed to physical or psychological harm from being subjected or exposed to abuse, neglect, or family violence.

Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

1. Y is the older child and was observed by the Family Consultant to be quite open.  He expressed some views about the current practice, which has been in place since early August 2014, of the children changing between the parents on Thursday and the bag of their clothes and other necessities being taken to the school by one parent and collected by the other.  Y was more concerned that he should not be present with both the parents at the moment.  The Family Consultant referred to that manner in this way:

   [Y] is aware that the parents don’t like to see each other in person.  They usually text and talk rarely on the phone.  It’s going okay.

2. Y said he prefers that the parents do not come into contact because:

   It makes me feel a bit safer, because if they argue, [F] would cry a bit, and I don’t like him crying. 

   He said if he was left alone with the two parents together:

   I’d feel just a tiny bit unsafe.  They’d probably yell, and I don’t want that to happen again.

3. Y expressed the view that he wanted the current arrangement to continue, although not a changeover on Thursday; rather, on Friday, to alleviate the problem in his mind about the bag.  There is no basis for assuming that Y understands that the current arrangements are permanent, where both places where the parents live are called “home”, but the children are not fulltime in either of them.

4. F made some complaints about the father’s then partner, about being smacked and being made to be late, which the father denied.  F, however, had no complaints about either of the parents of any substance, and expressed the wish that he would like to have a seven day visit then swap over, because “They get more time with us.”  F also said that he would like to live in the old way, that is, in his old house, which was sold in July this year.

5. At eight and six, with the separation of the parents fresh, the children have experienced a period of time where the parents were separated under the one roof for about four months, which must have been quite a volatile period for them to live through, and that is reflected in Y’s comments. 

6. Since August to December 2014, they have been living with the maternal grandmother and the mother and also living with the father, his partner, and his partner’s daughter, although that relationship has now ceased.  Although the separation may not be permanent, the father’s partner has returned to Queensland.  Given that level of continuous change, I am not satisfied that either child understands that the current week-about arrangement would continue on a permanent basis.

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

1. As stated, the children have strong, loving, affectionate bonds with both the parents.  I draw from the evidence of the parties and the comments of the children, that the mother tends to be more organised and focused on time, and that the children enjoyed a more relaxed environment with the father, and also outdoor and holiday activities with him.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The father initiated the week-about shared arrangement and is committed to it being the best result for the children. 

2. The mother, on the evidence of both parties, has not agreed that that was the best arrangement.  However, that is what has happened. 

3. Both of them want decisions to be made about the children effectively and I do not doubt that when some of the tension between them settles, they will be able to do that in a way they must have done in the past for the children, to be as well-adjusted and generally happy as they are.

4. There is, in terms of maintaining the children, no evidence before me of any failure by either parent to adequately provide for both of the children.  Both parents are in full-time employment. 

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances including any separation from either of his or her parents

1. The change proposed by the mother is that rather than spending seven days on a rotating basis, the children would spend 10 days with her and four with the father in each fortnight.  There is an agreement that holidays would be shared. 

2. It seems to me that some adjustment does need to be made to relieve the children from changing homes every week and taking their possessions with them on a semi-permanent basis, which is how it would inevitably feel to children this young, since these are interim orders.  They have become used to changing between the parents on Thursday and I conclude that if the issue of having to collect up and take with them all of their possessions was reduced in significance for them; there would be a benefit in continuing to change over on Thursdays.

3. The children will need to see reassurance from both of the parents if there is an adjustment.  It seems to me that as long as the children had an extended, clear weekend with each parent, there is a benefit to them in establishing a base for themselves and their possessions and for spending time with the other parent.  Equal time is not for the benefit of parents and in this case there is grounds for some concern that each of the children appear to be trying to be fair to their parents.  That is the beginning of parentification where children meet the emotional needs of their parents and not the reverse.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

1. Happily, for these parties, there is none.  They live in the same suburb, are both employed and are able to transport the children easily. 

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Both parents have the capacity to meet the needs of both children; that is, all their needs.  The mother is a financial professional; the father is a teacher.  They are educated people, attentive to the needs of the children.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents

1. The parties are in their mid-40s.  They separated this year after a 20 year relationship.  It has been enormously upsetting and disruptive, clearly, for the whole family.  Both parents have shown uncontained behaviour.  At times, the mother has been unable to conceal her hurt, disappointment and affront, especially at intimate sexual photos being present in the computer of the father in the family home.

2. The father has been somewhat immature in relation to the mother’s allegations of pornography, that he had sexual images of himself and his partner in a computer in the home. In his mind, the thought must have arisen about the risk that the mother would see them, although it was less likely that the children would, in circumstances where they were living separately under the one roof and a new relationship for the father quickly became evident. 

3. There is also the matter of the introduction of the father’s new partner and her daughter to the children very quickly.  The mother was critical.  The father said he went about it sensitively and I do not doubt that he did but all of those matters I take into account as a temporary impairment in the capacity of both parents which will, undoubtedly, settle.

Conclusion

1. Each of the parents has shown an attitude of concern, love and support for the children.  Considering all of those factors I have concluded that the relationship between the parents is not presently sufficiently good to support an equal time arrangement, with all of the easy dialogue and cooperation which is necessary for parents to keep on top of the little details which need to pass between them for that arrangement to work.  The parents are presently critical of each other and the father was, at least in his submissions, intensely critical of the mother and their emotions are still somewhat uncontained.

2. The children are doing well but the older child, in particular, is sensitive to being in the presence of the parents together at the moment, which is a very different situation than has been the case for the first eight years of his life.  Substantial and significant time in this matter seems appropriate. 

3. It is important for the children to spend ordinary day-to-day and weekend and holiday time with each parent.  It is also important that the children are able to speak on the telephone to the other parent, not only by way of order, and I consider an order for some minimum telephone contact is essential, but for the father during term time and for both parents during holiday time.

4. The younger child himself said that his solution to the children’s dilemma was to let the children ring the other parent if they missed them and to visit the other parent if they felt sad.  The parents might consider being guided by F’s comments. 

5. I do not consider it is appropriate to make any restraints on the conduct of these parents who, no doubt, have been excellent parents, restrained in their conduct until events broke out in their lives this year. 

6. For that reason I have made orders for the parents to share equally in parental responsibility; for the children to live with the mother and to spend time with the father commencing in term one in 2015, on alternate weekends commencing after school on Thursday until the recommencement of school the following Monday and from Thursday after school until Friday commencing school the following morning in the other week.

7. I have also made orders for the children to spend time with the father for half school holidays and for a telephone call on Monday evening. 

8. Given the comments I have made about the parents, I have left it as a matter for them to arrange for time for the children with the mother over Christmas given that the children will be spending the first half of the pending school holiday with the father.

9. Orders are made accordingly 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 12 December 2014.

Associate:

Date:  23 December 2014