Scanlon and Chandler

[2016] FCCA 1743

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCANLON & CHANDLER [2016] FCCA 1743

Catchwords:
FAMILY LAW – Parenting – father seeks equal time – father’s long working hours.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 65DAA

Applicant: MR SCANLON

Respondent: MS CHANDLER

File Number: DNC 512 of 2014

Judgment of: Judge Young

Hearing dates: 3 & 4 November 2015

Date of Last Submission: 7 December 2015

Delivered at: Darwin

Delivered on: 12 July 2016

REPRESENTATION

Solicitor for the Applicant: Mr C Black of Cecil Black Family Lawyers

Solicitor for the Respondent: Mr M Sgarbossa of Northern Territory Legal Aid Commission

ORDERS

1. That the mother and the father shall have equal shared parental responsibility for the children, X born (omitted) 2009 and Y born (omitted) 2013 (“the children”).

2. That the mother and the father are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)The children’s education

   (b)The children’s religious and cultural upbringing

   (c)The children’s health

   (d)Changes to the children’s living arrangements in the event that they impact upon one parent’s ability to spend time with the children

3. That notwithstanding the provisions of Order 2, above:

   (a)The mother shall be responsible for the daily care, welfare and development of the children when the children are living with her;

   (b)The father shall be responsible for the daily care, welfare and development of the children when the children are living with him.

4. That the children shall live with the mother.

5. That the children spend time with the father at times as agreed between the mother and the father and failing agreement, as follows:

School term arrangements

(a)Starting from the date of these Orders each second weekend from 4.00pm on Saturday until 6:00pm on Sunday providing that the father must give the mother 48 hours (48) written notice (or by telephone text message) if he is unable to care for the children;

(b)May spend block time of up to six (6) days during his rostered week off providing he gives the mother seven days written notice (or by telephone text message) of his intention to spend time with the children; and

(c)In the event that the father returns to normal working hours from Monday to Friday, the children shall spend every alternate weekend with him from after school Friday to before school Monday and from after school Wednesday to before school Thursday in the other week.

School holiday arrangements

(d)Orders 5(a), (b) and (c) are suspended for the Northern Territory gazetted school holiday periods and each parent shall spend time with the children as agreed but if there is no agreement the following arrangements shall be followed;

First and third term school holidays

(i)The children shall spend the first half with the mother from last day of school until Wednesday 4.00pm and the second half with the father, from 4.00pm Wednesday returning the children to the mother by 6.00pm on Sunday.

Midyear holidays

(ii)Up until the youngest child starts school the children shall spend the first and third week with the father and the second and fourth week of the midyear school holidays with the mother.

(iii)Once the youngest child starts school then both children shall spend time with the father for the first half of the midyear school holidays on each odd numbered year and the second half in each even numbered year and with the mother for the second half in each odd numbered year and the first half in each even numbered year.

(iv)The father shall only spend time with the children in accordance with Orders for first, midyear and third term school holidays, if he gives fourteen (14) days written notice (or by telephone text message) to the mother of his intention to spend time with the children.

Christmas holiday period

(v)Up until the youngest child starts school the children shall spend time with the father for the first week and with the mother the second week, alternating each week until the end of the Christmas school holiday period.

(vi)Once the youngest child starts school then both children shall spend time with the father for the first half of the Christmas holidays each odd numbered year and the second half in each even numbered year and with the mother for the second half in each odd numbered years and the first half in each even numbered year.

(vii)The father shall only spend time with the children in accordance with Orders in relation to the Christmas holiday period, if he gives twenty one (21) days written notice (or by telephone text message) to the mother of his intention to spend time with the children.

(e)For Christmas Eve, Christmas Day and Boxing Day each year Orders 5(c)(iv) & (v) are suspended and the following arrangements will be followed:

(i)Commencing in 2016 the children shall spend time with the mother from 12.00pm Christmas Eve to 12.00pm Christmas Day and each even numbered year thereafter and from 12.00pm Christmas Day to 12.00pm Boxing Day on each odd numbered year.

(ii)Commencing in 2016 the children shall spend time with the father from 12.00pm Christmas Day to 12.00pm Boxing Day and each even numbered year thereafter and from 12.00pm Christmas Eve to 12.00pm Christmas Day on each odd numbered year.

Changeovers

1. The father shall pick up and drop off the children at the mother’s home or child care and when the children commence school from the children’s school.

Special days of significance

1. For the purpose of the children spending time with either parent on special days of significance Order 5 is suspended and the following arrangements shall be followed.

2. The children shall spend Father’s Day with the father between the hours of 9.00am and 5.00pm, if they are not already in the care of the father.

3. The children shall spend Mother’s Day with mother between the hours of 9.00am and 5.00pm, if they are not already in the care of the mother.

4. If a child’s birthday falls on a week day when the children are not in the care of the father then the father shall spend time with both children between the hours of 3.30pm and 6.30pm.

5. If a child’s birthday falls on a weekend or holiday period when the children are not in the care of the father then the father shall spend time with both children between the hours of 12.00pm and 5:00pm on that day.

When a parent is unable to care for the children

1. In the event that either parent is unable to care for the children, for whatever reason, during their respective periods referred to in these orders, for a period greater than two (2) days, then the other parent is to be given first option to care for the children.

Communication between children and parents

1. That each parent encourage and facilitate telephone communication between the children and the other parent whilst the children are in their care as requested by the child but no less frequently than once every three days.

2. For communicating information between the parties, the mother and father shall:

   (a)Communicate by telephone about matters of an urgent nature; and otherwise;

   (b)Communicate by text message or telephone about day to day matters including arrangements for each party to spend time with the children.

Change of address and contact details

1. That each parent keeps the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within twenty four (24) hours of such change.

Children’s education

1. This Order shall be sufficient authority to the children’s day care provider and school for teachers to provide both parents with copies of reports, letters, photographs and to discuss with both parents all matters concerning the children’s education and well-being and to ensure that all day care and school records include both parents as persons to be notified in the case of emergency. The cost of providing all such information shall be borne by the parent requesting it.

2. That each party is at liberty to attend the children’s school for the purposes of any function or activity normally attended by parents.

Medical information

1. This Order shall be sufficient authority to the children’s doctors and all other medical practitioners to provide both parents with all information including documents relating to the health of the children and to discuss with either parent all matters concerning the children’s health and well-being. The cost of providing all such information shall be borne by the parent requesting it.

2. That the parents keep each other informed of all details concerning the children’s doctors and medical practitioners and each parent must notify the other of any medical emergency affecting the children as soon as practicable.

3. In the event of a medical emergency involving a child the parent who has care of the child at that time must inform the other of the emergency as soon as reasonably practicable after its occurrence.

Restraints

1. Neither parent shall denigrate nor allow others to denigrate the other parent or members of that parent’s family in the presence or hearing of the children.

2. A parent who has care of the children shall not consume alcohol to excess or take any illicit drugs while they are in that parent’s care and must not allow others to do so in the their presence.

Interstate travel

1. Either parent is permitted to take the children on an interstate holiday only during the time the children are in that parent’s care, providing the travelling parent gives the non traveling parent fourteen (14) days written notice, a travel itinerary and address the children will be staying including contact numbers so the children may have contact with the non travelling parent. 

Passports and international travel

1. Either parent is at liberty to apply for a child’s Australian passport and the parent who is not applying for the passports shall do all things and sign all documents necessary for the issue or renewal of a child’s passport within 14 days of being requested to do so by the parent making the application.

2. In the event that a parent fails to comply with Order 24 within fourteen (14) days of a written request by the parent making the application or his/her legal representative, a Registrar of this Court shall be authorised to sign any necessary documents referred to in Order 24 upon the filing of an affidavit by the Applicant or his/her legal representative deposing to the request made of the other parent in writing and his/her failure to comply in the time stipulated.

3. Either parent is permitted to take the children on an overseas holiday only during the time the children are in that parent’s care, providing the travelling parent gives the non traveling parent sixty (60) days written notice prior to the intended date of departure and the following information has been provided by the travelling parent to the other parent:

   (a)A copy of return tickets; or

   (b)A detailed travel itinerary,

   (c)Travel insurance details,

   (d)Contact telephone numbers and addresses of locations where the children will be attending

4. That a travelling parents compliance with Order 26 is to be interpreted as the non travelling parent giving consent to the travel of the children for an overseas holiday.

5. The children’s Australian passports, upon issue, shall be held by the mother and shall be provided to the father upon complying with the terms of Order 26 and the father shall return the passports to the mother as soon as practicable but no later than within seven (7) days upon returning to Australia.

6. That during any period of travel the children shall be at liberty to telephone the non travelling parent at any reasonable time and the parent shall facilitate such contact upon a child’s request.

7. The mother and father are to ensure that X attends all counselling appointments while she is in their care.

8. The mother to provide the father with a list of all the professionals involved with X and Y including the school and the father may request information directly from those professionals involved.

9. The mother is to ensure that X attends the next available paediatric appointment.

10. X and Y’s school/childcare and relevant health professionals including X’s counsellor are to be provided with a copy of the family report to assist them in their work with the children.

11. The mother and father are to use a Communication Book or electronic communication to share information regarding X and Y at handovers.

12. The mother and father are to attend Anglicare post-separation counselling course For The Kids to assist them developing a more effective co-parenting relationship unless they have done so already.

13. The mother and father are to attend the Anglicare Triple P Parenting course unless they have done so already.

Dispute Resolution

1. The process to be used in resolving disputes about the operation of these orders shall be as follows:

   (a)The parents shall consult with a Family Dispute Resolution practitioner to be agreed between the parties or Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;

   (b)The parents shall pay the costs of the Family Dispute Resolution Practitioner equally;

   (c)In the event that the parents cannot agree on a Family Dispute Resolution practitioner, then the mother shall nominate three (3) practitioners and advise the father in writing details of their fees, experience and availability;

   (d)The father shall then choose one (1) of the listed practitioners within seven (7) days of receipt of the list;

   (e)If the father fails to choose then the mother may choose.

2. That unless there are some emergency circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Order.

Obligations

1. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations theses orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the 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 NOTED that publication of this judgment under the pseudonym Scanlon & Chandler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 512 of 2014

MR SCANLON

Applicant

And

MS CHANDLER

Respondent

REASONS FOR JUDGMENT

1. This is a parenting matter. The applicant father is 38 years old. He is employed as a (occupation omitted). The respondent mother is 40 years old. She is studying for a (omitted) degree and is also employed part-time. Both parents are Aboriginal people. The children, two girls, are 6 and 3 years old respectively.

2. The children presently live with the mother and spend week-ends with the father pursuant to interim orders. Those orders provide that the children spend time with the father from 4.00pm Saturday until 6.00pm Sunday every weekend and from 8.00am Wednesday to before school/daycare on the following Monday in every fifth week.

The proposals

1. The father’s proposal is that the children spend equal time with each parent, living week about. The father proposes that, notwithstanding his heavy work commitments, he will arrange for the care of the children in his week by a relative or a paid carer or nanny. The father does not put forward any alternative proposal.

2. The mother’s proposal is that the children live with her and spend every second weekend from 4.00pm on Saturday until 6.00pm on Sunday and block time of up to six days during the father’s rostered week off which occurs every fifth week. This proposal is intended to accommodate the father’s work commitments whereby he works six days a week but finishes work every second Saturday at 3.00pm. He has every fifth week off work.

Background

1. The parties made allegations against each other of alcohol abuse and family violence. They disagreed about the length and circumstances of their cohabitation. They made allegations about child support payments or lack thereof. I have not found it necessary to make definite findings about all of these matters. Nevertheless some conclusions can be drawn.

2. The parties commenced living together in late 2008 or early 2009. The relationship was turbulent with much disagreement. There were multiple separations with the first separation apparently taking place while the mother was pregnant with the parties’ first child and resuming when she was about six months old. In about 2011 or 2012 the parties moved from Darwin to (omitted). Both were employed in jobs that provided accommodation. They disagree about whether they were living together at the time. The father asserts that he was living in accommodation in the (omitted) village while the mother lived in rental accommodation in the town. It was during this period that the mother became pregnant with the parties’ second child.

3. In January 2013 the father obtained employment on a “fly in fly out” basis in the (omitted) in Western Australia. The father said that his “nominated home base” for the purpose of his employment was Brisbane and he returned there at the end of each period of employment. The father’s employment in the (omitted) continued until August 2013. It appears that he saw little of the children over this period. During Christmas 2013 the children spent two weeks with him in (omitted). In early 2014 the parties returned to Darwin and resumed cohabitation for a short time before separating again. The father asserts that from February 2014 until September 2014 the children lived with the mother during the week and with him on most weekends. In late 2014 cohabitation appears to have resumed and continued until September or October 2014.

4. The mother alleged that on 19 September 2014 the father verbally abused her and when she threatened to call the police, broke her phone, chased her and punched her in the belly. The mother annexed photographs to her trial affidavit showing bruising on her belly. These originally formed part of a police complaint. A domestic violence order was made against the father in the local Court on 14 October 2014. It is not expressly stated in the mother’s affidavit but it appears that the domestic violence order was made in the absence of the father. He claims he was not served with the application and was not aware an order was made until after the event. He says the order was discharged because the mother did not appear at the next hearing date.

5. The father’s trial affidavit was largely silent about the circumstances of the 19 September 2014 incident. His affidavit in reply to the mother’s trial affidavit contains general denials of the mother’s allegations about the 19 September 2014 incident. The father denied punching the mother “really hard in the stomach”. His only statement about what happened is that “When I spoke to the police subsequent to the incident, I told them that I thought she had hurt her stomach on the kitchen table, during the argument”.

6. It is clear from the police records that there had been numerous police visits to the family over the years or complaints involving the parties separately. Some complaints to the police were made by the mother, one complaint at least was made by the father and at least one complaint was made by neighbours. On at least two occasions the police records describe the mother as “intoxicated” and on two other occasions as “slightly intoxicated”. On one of those occasions the father was also described as “slightly intoxicated”. Complaints included complaints by the mother about the father stealing the mother’s purse, which was not substantiated by the police and by the father complaining about the mother sending him offensive text messages.

1. Until the 19 September 2014 incident the complaints to police do not generally appear to involve allegations of physical assault (although there was an incident involving allegations of pushing and shoving in 2012). The father’s counsel cross-examined the mother about this incident. While the cross-examination was intended to undermine the mother’s credibility, the father’s version of this incident that is, the bruise was caused by the kitchen bench rather than by him punching her, was not put to the mother. The mother withdrew her complaint to the police six days later. In cross-examination she said this was because she had been threatened by the father’s family. In any event, the mother and father resumed cohabitation until 9 October 2014. The mother alleges there was another incident on that date when the father threw a cup of milk on her computer during an argument. She left the home and stayed with her friend. The mother’s affidavit is not clear on the point but it appears that the domestic violence order was obtained following this incident.

2. I accept, on the balance of probabilities, the mother’s version of these incidents. However, I am also satisfied that the mother has underplayed the influence of her use of alcohol in the arguments and conflict between the parties. This is clear from the police records. I have little doubt that the conflict and dysfunction apparent in the relationship between the parties has had a harmful effect on the children and both parties must accept some responsibility for that. 

The Family Report

1. The family report identified family violence and intoxication as an issue in this case and pointed to a possible link between that and evidence of the eldest child’s bedwetting and behavioural problems. The author of the family report noted that both parties admitted that the children had witnessed family violence. She also pointed to the evidence of intoxication of the parties witnessed during police callouts and observed that if the parties were under the influence of alcohol while caring for the children this would be likely to compromise their parenting capacity. In my view, the validity of these concerns was reinforced by the evidence during the trial.

2. The author of the family report also expressed the opinion that the family violence appeared to be of a controlling coercive nature. She observed that the mother presented as consistently fearful of the father while the father did not present as fearful of the mother. She also pointed to an incident during her interview of the father when, in response to a question he deemed “offensive”, he raised his voice and moved closer toward her. The family report writer said that she had felt intimidated by his body language. The father’s trial affidavit said that he was

   “… disappointed that the family consultant found my behaviour… threatening. I was not intending to threaten the family consultant, and nor did she show any signs of fear. If however the family consultant felt threatened by my body language as I moved closer to her, I offer my genuine and sincere apology from creating that feeling.”

3. The family report writer was not cross-examined by the father’s counsel about this incident. I accept unequivocally the family report writer’s observations.

4. The family report writer observed that the parties had no effective co-parenting relationship. She said that the father continued to hold very negative feelings about the mother which detrimentally influenced his ability to see the importance of her in the children’s lives and his willingness to communicate with her. Comparatively, the mother repeatedly emphasised the importance of the father on the children’s lives despite a fear of him and continued her recent attempts to communicate effectively with him at handover.

5. The family report writer noted that both children had displayed challenging behaviours during her observation. She said she would have liked to have seen more positive reinforcement and emotional warmth from both parents. She felt the father lacked a solid understanding of parenting strategies to meet the children’s needs. She felt he would need continuing support in providing consistent appropriate guidance and boundaries for the children. In comparison, the mother provided rich and reflective narratives regarding parenting strategies she applied with the children and the observation suggested she had some skill in the application of these strategies.

6. The family report writer did not support the father’s proposal for equal time. She believed that the father would need considerable support from his extended family given his work commitments. She felt that this would necessarily involve further change in the children’s lives which was undesirable. She believed that the mother had solid parenting skills and could provide greater stability in the children’s lives. I accept these opinions.

7. She recommended that the parties have shared parental responsibility and that the children live with the mother and spend alternate weekends with the father.

8. The father described his work present work commitments as a “27 day swing” and “… at the end of that …7 days recreation”. He said that he leaves for work each day at 5:00am and returns home at 5:30pm except on Saturday when he returns from work at 3.00pm. He has each Sunday off work. He said that he is unable to arrange work to fit in with the mother’s proposal that the children spend time with him each second weekend. (The mother’s proposal in her amended response filed on 2 February 2015 was that the children spend time with the father during the school term on alternate weekends from 3.00pm on Friday until 4:30pm on Sunday). The father said he did not think it would be possible for him to arrange for a paid carer to be able to look after the children on the Friday afternoon before he came home from work nor the Saturday when he would be working.

9. The father’s proposal is that the children spend equal time with him and the mother on a week about basis. He said that he lives in a three-bedroom ground level house which provides suitable accommodation for the children. The children would share one-bedroom and a “paid carer” would have a second bedroom. He would leave for work before the children and the carer would handle the morning routine and deliver the children to school or childcare. The carer would collect the children from school or childcare and care for the children until, according to the father, “… I arrive home at about 1800”. The carer would assist in the preparation of meals and other housekeeping tasks.

10. The father filed an affidavit from his maternal aunt who said she was willing to get the children up in the morning and take them to school and childcare and bring them home at the end of the day. The father was also cross-examined about the cost of a “paid carer” and the extent and detail of his enquiries about the availability of such a person. It appeared that his enquiries had been limited to Internet searches.

11. The family report writer was cross-examined about this proposal by counsel for the father. She reiterated her view that it was important that there be consistency in the lives of these children because both had gone through multiple changes in their short lives. She was concerned that the father’s proposal would require further multiple changes which would not be in the best interests of the children. She also said that the proposed role of the maternal aunt had not been outlined to her at the time of the preparation of the family report and she would want to know more about the maternal aunt and to observe the children with her before expressing any view about the aunt’s capacity and suitability as a carer. I agree.

12. The mother’s proposal involves the children spending each fifth week with the father to match his week off. The father’s proposal for week about would mean that the children’s week with him would coincide with the rostered week off only every tenth week. The mother pointed out that this arrangement would be likely to result in the children spending fewer waking hours with the father than under her proposal. In my view, there is substance in this observation.

13. The father’s proposal contains many uncertainties and I have strong doubts about its practicality and whether it is in the best interests of the children.

Legislative pathway

1. I turn now to the legislative pathway in the Family Law Act1975.

2. Section 60CA requires the court to have regard to the best interests of the child as the paramount consideration. Section 60CC (1) says that in determining what is in the child’s best interests the court must consider (a) the benefit to the child of having a meaningful relationship with both of the child’s parents and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, with the greater weight to be given to the second consideration.

3. Section 60CC (3) provides that there are additional considerations. They are set out below with my findings where relevant:

   (a)    any views expressed by the child.

   The children are too young to express a view.

   (b)    the nature of the relationship of the child with each of the child’s parents and other persons.

   There is nothing to suggest the children have other than a good relationship with both parents.

   (c)    the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with child.

   Both parents appear to have participated in making decisions about major long-term issues concerning the children. It appears the father had little to do with the children in 2013 when he worked in the (omitted).

   (ca)   the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the obligation to maintain the child.

   The parents are involved in continuing disputation in relation to the father’s child support obligation. It appears that at one point the Child Support Registrar intercepted the father’s tax refund in order to discharge his child support liability. Given that the dispute appears unresolved I am unable to make a finding that the father has failed to fulfil his obligations to maintain the children.

   (d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or any other person with whom he or she has been living.

   The children presently live with the mother and spend time with the father. No separation is proposed.

   (e)    the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

   There is no practical impediment to the children spending time with and communicating with either parent.

   (f)     the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

   I have found that the parents have been responsible for exposing the children to conflict and family violence. Subject to that qualification I am satisfied that both parents are able to satisfy the emotional and intellectual needs of the children, although I find that the mother is better able to do so than the father.

   (g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other relevant characteristics.

   I find that there are limitations in the maturity of both parents and that the use of coercive and controlling violence by the father and the abuse of alcohol by the mother and probably the father, has been a significant factor in the lives of these children.

   (h)    if the child is an Aboriginal child or a Torres Strait Islander child child’s right to enjoy his or her culture and the likely impact of any proposed parenting order will have on that right.

   The children are Aboriginal children. Both parents are Aboriginal people and there is no reason to believe that any parenting order I propose will hinder the children’s right to enjoy their culture.

   (i)     the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

   See (g) above.

   (j)     any family violence involving the child or a member of the child’s family.

   I find that the children have been exposed to family violence.

   (k)    if a family violence order applies, any relevant inferences that can be drawn from the order.

   A family violence order applied in 2014 but that appears to have been discharged.

   (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.

   (m)   any other fact or circumstance that the court thinks is relevant.

4. Neither party submitted that the presumption of equal shared parental responsibility should not apply. I am satisfied that it should apply. Accordingly, I am required by section 65DAA to consider whether it would be in the children’s interest to spend equal time with the parents.

5. I am satisfied that it is not in the best interests of the children to spend equal time with the parents because the father’s proposal involves multiple future changes, for example in the identity of the paid carer and very extended periods where the children are cared for by paid carers. I am not satisfied that the father has carefully thought through this proposal and his enquiries limited to Internet searches appear to me to be very inadequate in the circumstances. I am conscious that the mother’s proposal also involves the children being in the case of the youngest child, in childcare during the day and in the case of the eldest child, for a period after school. Nevertheless, I think it is likely that the children are likely to spend more time with their parents under the mother’s proposal rather than the father’s proposal.

6. Another factor that I take into account is the high level of historical conflict between these parties and the current lack of effective parenting cooperation identified by the family consultant. Although there was some evidence that communication between the parties had improved I suspect that the pressures of an equal time arrangement would lead quickly to renewed conflict. In my view, an arrangement that is likely to lead to a decrease in parental conflict is highly desirable in this case.

7. I am satisfied that it is in the best interests of the children that they live with the mother and spend substantial and significant time with the father. The mother’s proposal whereby the children spend Saturday night and Sunday with the father on each alternate weekend and six nights with the father during his rostered week off provides for this. If the father returns to more regular hours with the entirety of his weekends free to care for the children I propose to make orders for the children to spend alternate weekends with him from after school Friday to before school Monday and in the other week from Wednesday after school until Thursday before school. I propose to make orders that the children spend half the school holidays with each parent.

8. I will also make orders regarding continuing counselling for the eldest child and certain other orders recommended by the family report writer. These were not opposed by the parties.

9. The father sought costs as the result of a psychologist not being required for cross-examination. Apparently the father was notified the day before the trial began that the witness was not required and, it was said, unnecessary fees in the sum of $1,186 were incurred. The background is as follows. Trial directions were made requiring the parties to file affidavits by 19 October 2015. On that date the father “foreshadowed” an intention to rely on an affidavit from the witness. On 20 October 2015 the solicitor for the mother said that the witness would be required for cross-examination. On 22 October 2015 the father’s solicitor took issue with that and suggested it seems, that the witness should be permitted to give evidence by telephone. I was not informed when the affidavit was actually served on the mother’s solicitor. The affidavit was affirmed on 26 October 2015 and filed on 29 October 2015, that is, three business days before the trial began and two business days before the mother’s solicitor advised the father’s solicitor that the witness was not required cross-examination. The father was in breach of trial direction and filed his affidavit late. There is nothing before me to indicate that once the affidavit was served, the mother’s solicitor acted other than promptly in advising the father’s solicitor that the witness was no longer required. The application for costs is dismissed.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:              12 July 2016