Shand and Connor
[2010] FamCA 59
•29 January 2010
FAMILY COURT OF AUSTRALIA
| SHAND & CONNOR | [2010] FamCA 59 |
| FAMILY LAW - CHILDREN |
| Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60CC(4), 60CC(4A) Federal Proceedings (Costs) Act 1981 (Cth) s 10(3) |
| Goode and Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Shand |
| RESPONDENT: | Mr Connor |
| FILE NUMBER: | PAF | 1390 | of | 2006 |
| DATE ORDERS MADE: | 19 January 2010 |
| DATE REASONS FOR JUDGMENT DELIVERED: | 29 January 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 - 22 September 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hazelwood |
| SOLICITOR FOR THE APPLICANT: | Branston Neville |
| SOLICITOR FOR THE RESPONDENT: | Brischetto & Ford |
Orders
The child A born … March 2005 live with the mother apart from the time the child spends with her father pursuant to these Orders.
The mother and father have equal shared parental responsibility for the child.
The child attend L Catholic School upon her commencement of school in 2010 and unless the parties otherwise agree, complete her primary education at that school.
From the commencement of Term 1 in 2010, the child spend time with the father:
4.1.During school term, from after school on Friday afternoon to the commencement of school on Tuesday morning each alternate week.
4.2.Half of each school holidays as agreed by the parties and failing agreement (except as provided in Order 4.3), in the first half thereof in even numbered years and the second half thereof in odd numbered years.
4.3.Notwithstanding Order 4.2, in each Christmas period:
4.3.1.The child shall live with the father from 12 noon Christmas Day until 12 noon Boxing Day in even numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in odd numbered years.
4.3.2.The child shall live with the mother from 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years and from 12 noon Christmas Eve until 12 noon Christmas Day in even numbered years.
4.4.If the father’s birthday and/or Father’s Day does not fall on any of the days referred to in Orders 4.1 or 4.2 above, then:
4.4.1.In respect of the father’s birthday, unless the parties otherwise agree, the child shall spend time with him from after school or 4.30pm (as the case may be) until 6.00pm; and
4.4.2.In respect of Father’s Day, then the child shall live with the father on the Father’s Day weekend in substitution for the weekend she would otherwise have spent with the father pursuant to 4.1 and 4.2 above which immediately precedes the Father’s Day weekend.
4.5.If the mother’s birthday and/or Mother’s Day does not fall on a day upon which the child would be living with the mother pursuant to these orders, then:
4.5.1.In respect of the mother’s birthday, unless the parties otherwise agree, the child shall spend time with her from after school or 4.30pm (as the case may be) until 6.00pm; and
4.5.2.In respect of Mother’s Day, then the child shall live with the mother on the Mother’s Day weekend in substitution for the weekend that she would otherwise have spent with the mother pursuant to these orders which immediately precedes the Mother’s Day weekend.
4.6.If the child’s birthday falls on a day in respect of which she is not living with one of the parents for at least part of that day, then the child shall spend time with the other parent from after school or 4.30pm (as the case may be) until 6.30pm.
Handovers and/or collections which do not occur on a school day (and on those days the child shall be delivered to or collected from her school), the child shall be collected by the father from the mother’s residence at the commencement of the time she is to spend with the father and she shall be collected from the paternal grandparent’s residence at the conclusion of the time the child spends with the father.
The time for failing any appeal against these orders shall not commence until the Reasons for these orders are published.
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.
NOTATION:
These orders have been made in chambers pursuant to s 69ZO Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Shand & Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 1390 of 2006
| MS SHAND |
Applicant
And
| MR CONNOR |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter is about parenting arrangements for the child of the relationship A born in March 2005. The mother is seeking that the child live with her and spend time with the father for one weekend per fortnight (after school Friday to before school Monday). The father is seeking a week about arrangement. There is an additional issue that I have to decide regarding which primary school the child should attend upon her commencement of school in 2010.
Final orders were made in this matter on 19 January 2010 so that the parents would know what my decision was, particularly in respect of where the child would start school in 2010. The reasons dictated by me were unable to be typed and checked prior to 19 January 2010. These are those reasons.
APPLICATIONS
Mother
The mother seeks the following orders (as detailed in Annexure “B” to the mother’s amended case outline):
1. These Orders concern the child [A] born […] March 2005.
2. That the father and mother have shared parental responsibility in respect of the child.
3. Until 25 January 2010:-
3.1.Orders 4 and 6 (hereinafter referred to as the Interim Orders) of the Orders made on 7 March 2008 shall continue.
3.2.Both parties shall ensure that [A] attends pre-school at ABC Learning Centre on Tuesday, Wednesday and Thursdays of each week during such weeks such centre is open.
4. That from the commencement of the first school term 2010 the said child live with the father as follows:-
4.1.Each alternate weekend from after school Friday until before school Monday.
4.2.Half of each school holidays as agreed by the parties and failing agreement (except as provided in Order 4.3), in the first half thereof in even numbered years and the second half thereof in odd numbered years.
4.3.Notwithstanding Order 4.2 (or the Interim Orders), in each Christmas period:-
4.3.1.the child shall live with the father from 12noon Christmas Day until 12noon Boxing Day in even numbered years and from 12noon Christmas Eve until 12noon Boxing Day in odd numbered years.
4.3.2.the child shall live with the mother from 12noon Christmas Day until 12 noon Boxing Day in odd numbered years and from 12noon Christmas Day until 12noon Boxing Day in even numbered years.
4.4.If the father’s birthday and/or Father’s Day does not fall on any of the days referred to in Order 4.1 or 4.2 above, then:
4.4.1.If the father’s birthday falls on a weekday, the child shall spend time with him from after school or 3.30pm (as the case may be) until 6.00pm, and
4.4.2.In respect of Father’s Day, then the child shall live with the father on the Father’s Day weekend in substitution for the weekend she would otherwise have spent with the father pursuant to Orders 4.1 and 4.2 above which immediately precedes the Father’s Day weekend.
4.5.If the mother’s birthday and/or Mother’s Day does not fall on a day upon which the child would be living with the mother pursuant to these Orders, then:-
4.5.1.If the mother’s birthday falls on a weekday, the child shall spend time with her from after school or 3.30pm (as the case may be) until 6.00pm: and
4.5.2.In respect of Mother’s day, then the child shall live with the mother on the Mother’s Day weekend in substitution for the weekend that she would otherwise have spent with the mother pursuant to these Orders which immediately precedes the Mother’s Day weekend.
4.6.If the child’s birthday falls on a day in respect of which the child is not living with one of the parents for at least part of that day, then the child shall live with the other parent from after school or 3.30pm (as the case may be) until 6.30pm.
5. At all other times the children shall live with the mother.
6. On every occasion when the child is living with a parent pursuant to these Orders, that parent shall have the day to day responsibility for the care, welfare and development of the child.
7. Handovers and/or collections which do not occur on a school day (and on those days the child shall be delivered to or collected from her school or pre-school, as the case may be), the child shall be collected by the father from the mother’s residence at the commencement of the time she is to spend with the father and she shall be collected from the paternal grandparent’s residence at the conclusion of the time the child spends with the father.
8. That, except when on holidays or vacations (to include camping outings, boat trips and other leisure activities) the child shall, when living with the father do so at the paternal grandparent’s home.
9. That neither party denigrate, or permit in the presence, hearing or sight of [A] any denigration of or derogatory comments about the other parent, or that other parent’s parents.
10. That [A] attend [L] Catholic Primary School at [V] when she commences school in 2010.
11. That the father pay the applicant’s costs of and incidental to these proceedings.
Father
In his case outline, the father sought the following orders:
1. That all prior orders be and are hereby discharged.
2. That applicant mother and respondent father have equal shared parental responsibility for making decisions about the long term care, welfare and development of [A] born […] March 2005 (“the child”).
3. That from a date as soon as practicable from the date of judgment in these proceedings that the child spend time and communicate with the respondent father as follows:
a.From 5pm Sunday to 5pm the following Sunday each alternative week.
b.For the first half of the gazetted school holidays.
c.For four (4) hours on the child’s birthday, where it does not fall on a day in the above cycle.
d.For four (4) hours on Father’s day where it does not fall on a day in the above cycle.
e.For four (4) hours on the respondent father’s birthday.
f.For any other special occasions or times as agreed between the parties.
g.From 4pm on Christmas Day until 4pm on Boxing Day in 2010 and each alternative year thereafter.
h.From 4pm on Christmas Eve until 4pm on Christmas Day in 2011 and each alternative year thereafter.
i.By telephone, email and/or webcam or Skype each day, during the week when the child shall live with the mother.
4. That unless the changeover is to occur at school, the changeover to occur at the home of the parent who is to spend time and communicate with the child.
5. The parties take all necessary steps and sign all necessary enrolments to enrol the child into:
a.[V] Public School [V] in the state of New South Wales for the commencement of the school year 2010.
6. That otherwise as provided in these orders the child live with the applicant mother.
7. That all outstanding applications do stand dismissed.
8. That pursuant to sections 65DA and 62B of the Family Law Act 1975, 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.
The father had originally sought an order in relation to the high school that the child will attend, however he withdrew that application during the course of the hearing.
Another proposal discussed during submissions
At the commencement of final submissions, I raised the possibility of making an order that the child’s time with her father extend from after school on Friday to before school on Tuesday each alternate weekend. The mother opposed such an order being made as did the father. Each were given the opportunity to respond to that proposal.
DOCUMENTS RELIED UPON
At the final hearing the mother relied upon the following documents:
7.1.Application for Final Orders filed by the mother 17 November 2006.
7.2.Amended Application in a Case filed 1 December 2006.
7.3.Affidavit of the mother sworn and filed 19 January 2007.
7.4.Affidavit of the mother filed 2 March 2007.
7.5.Amended Application filed 30 November 2007.
7.6.Affidavit of the mother filed 7 December 2007.
7.7.Client questionnaire.
7.8.Affidavit of the mother filed 14 May 2009.
7.9.Affidavit of the mother filed 10 August 2009.
The father relied upon the following documents:
8.1.Amended Response filed 30 November 2007.
8.2.Application in a Case filed 2 January 2007 by paternal grandparents.
8.3.Affidavit of the father sworn 28 November 2007.
8.4.Affidavit of R Connor sworn 28 November 2007.
8.5.Affidavit of T Connor sworn 24 November 2007.
8.6.Affidavit of the father sworn 6 May 2009.
The Family Consultant published a Family Report on 22 October 2007 and a further updating report on 5 January 2009.
CREDIT
Mother
The mother was an impressive witness who answered questions in a clear and frank way.
During final submissions, counsel for the father appropriately conceded that no criticism could be made of the mother’s credit.
Father
During final submissions, counsel for the father agreed that on at least three or four occasions the father conceded that what he had said in oral evidence was nonsense.
In comparison with the mother, the father was not an impressive witness. On a number of occasions during his oral evidence, the father took illogical or unreasonable positions. On occasions when the lack of logic or the lack of reason was pointed out to the father, he conceded that the original answer was not sustainable.
An example of this happening was when the father was being asked about why he had disregarded an agreement that the child attend pre-school on Thursdays. The father originally asserted that he did not take the child to pre-school because the mother had not dropped the child off at his house but subsequently was put in a position where he had to concede that that assertion made no sense.
Counsel for the father submitted that the father made his best attempt to answer questions, and that any discomfort he displayed while in the witness box can be attributed to his shyness. Counsel for the father submitted that the father should be given credit for making concessions. Whilst that is to some degree true, it does not reflect well on the father’s credit that he was put in the position on several occasions during cross examination of having to acknowledge the nonsensical nature of things that he had just asserted.
There were inconsistencies in the father’s oral evidence in relation to statements he said he made to the mother about the child attending ballet classes when that oral evidence is compared with entries in the communication book. When shown that information, the father agreed his oral evidence was inaccurate.
The father in an affidavit sworn in May 2009 said that “I am a full time share trader and work from home”. In oral evidence, he confirmed that that was accurate. However, when tested, he did not actually do any trading but did “paper trader” to gain knowledge about how to analyse stocks. He did not actually have a portfolio of shares which he was actually managing.
Where the evidence of the mother and father differs, I prefer the evidence of the mother.
SHORT HISTORY
The mother was born in. 1969. She is just 41 years of age.
The father was born in 1970. He is currently 39 years of age.
The mother says that the parties commenced cohabitation on 1 August 2004. The father gives this date as July or August 2004 and nothing turns on that. The parties did not marry.
The child A was born in March 2005. She is currently four years of age.
The mother says that the parties separated on 12 November 2006. The father gives this date as 11 November 2006; again nothing turns on the difference.
The mother filed her initial application for final orders on 17 November 2006.
CHRONOLOGY
The mother commenced living at V in 1992.
S, the mother’s child from a previous relationship, was born in September 1994 and is currently 15 years of age.
The parties commenced cohabitation in August 2004.
In October 2005 the father’s working hours at his place of employment were reduced to a few hours per week.
In November 2005 the father ceased full time employment and the paternal grandmother ceased her employment and began minding A for three days out of seven.
On 28 November 2005 the mother returned to full time employment, with A being minded for one day per week by the maternal grandmother and for three days per week by the paternal grandmother.
In January 2006 the father’s employment was terminated.
In February 2006 the parties became engaged to be married.
S commenced treatment with a psychologist Ms G on 14 October 2006.
The parties separated on 12 November 2006. A did not see her father for about 30 days. At some point the police commenced AVO proceedings against the father.
A commenced child care on 13 November 2006.
On 24 November 2006 Ms G published her report concerning S.
On 8 December 2006 orders were made that A spend two days with the father. There was a notation in the orders that the father would vacate the former home by 10 December 2006 and that he would consent to an order in favour of the mother for an injunction pursuant to s 56 of the Property (Relationships) Act 1984 (NSW) excluding him from entering the residence. A further notation provided that the mother would inform the NSW Police that she did not wish to proceed with AVO proceedings listed at the Blacktown Court.
On 14 December 2006 the mother’s AVO against the father was dismissed by consent. During the hearing the mother stated that this was because the father had vacated the home as per the orders of 8 December 2006 and she had moved back in and that is consistent with the notation referred to in the previous paragraph.
In January 2007 A commenced attending ABC Learning Centre for one day a week.
On 2 March 2007 Interim Orders were made that A spend five days and six nights per fortnight with the father, with the father to give 28 days notice of any intention on his part to change residence. A was turning two when this order was made.
In March 2007 A was admitted to the emergency section of Hospital but the mother was not advised that A was in hospital until 10.30am on 16 March 2007.
On or about 9 August 2007 the mother raised with the father A’s behaviour in smacking her face after a kiss with the father. In the mother’s affidavit sworn 6 December 2007 (paragraph 7.6), she states:
“When [A] is given a kiss on the cheek or head, she would hit her face or head as if she was wiping off the kiss. She would show aggression with hitting herself and say, ‘No’. On other occasions she would ask for a wipe or washer to wipe off the kiss”.
Paragraph 9 of the mother’s affidavit sworn 6 December 2007 states:
“….On or about 9 August 2007 I did say to the respondent: Have you noticed that [A] would smack her face once she’s been given a kiss on the cheek. In response the respondent simply said, ‘No’.”
However, the entry in the first communication book by the father dated 10 August 2007 drew a different response from the father:
“Yesterday I saw what you meant about [A] ‘wiping kisses off’ she told me that ‘[S] wipes kisses off’, however I wouldn’t take too much notice of this as for several weeks she has been putting on an ‘angry act’….”
The mother took A to see the psychologist Ms B on 27 August 2007, 3 September 2007, 14 September 2007, 29 September 2007, 4 October 2007, 12 October 2007, 26 October 2007 and 7 November 2007.
The Family Consultant interviewed the parties on 2 October 2007; the paternal grandfather on 8 October 2007; and further interviewed the mother on 18 October 2007.
The Family Consultant published his first report on 22 October 2007.
On 10 December 2007 orders were made by the Court continuing the contact regime of five nights and six days contact with the father.
In January 2008 A commenced attending ABC Learning Centre for two days a week.
On 7 March 2008 orders were made by the Court, which included notations about schools and A attending pre-school on Thursdays.
On 14 August 2008 both parents attended a paediatrician with A.
On 5 January 2009 an updated Family Report was published.
In May 2009 both parents attended an open day at L Catholic School.
THE MATTERS I MUST CONSIDER
In deciding whether to make any particular parenting order, my paramount consideration is A’s best interests.
To determine what is in A’s best interests, I must consider the primary matters set out in s 60CC(2) Family Law Act 1975 (Cth) (“FLA”) and the additional considerations set out in s 60CC(3) FLA and other matters referred to in other parts of s 60CC FLA including s 60CC(4) FLA and s60CC(4A) FLA.
SECTION 60CC FACTORS
The matters under s 60CC FLA that are relevant to this case are dealt with below.
The benefit to the child of having a meaningful relationship with both parents
It is of benefit to A to have a meaningful relationship with each of the parents. The question I have to deal with is what arrangement is most likely to afford opportunities to her to have a meaningful relationship with both her parents.
Need for protection and family violence
It is not suggested that there is any need to protect A from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. There is no family violence order that has been made in this case, nor is there any allegation that family violence is a matter that I need to consider.
In 2007 the wife had prepared a case outline in which there is a reference to the presumption of equal shared parental responsibility not applying because there are reasonable grounds to believe that the father had engaged in abuse or family violence. The police had originally applied for an apprehended violence order against the father, but as otherwise recorded in these reasons, the mother asked them not to proceed with that application once the father agreed to vacate the home. The mother described the relationship with the father, whilst they were together, as “high conflict” involving verbal and mental aggression by the father.
The nature of the child’s relationships with each of her parents and other persons, including her grandparents
The family consultant’s opinion is that A has a primary attachment to the mother. She also has secure attachment to the father and to the paternal grandparents.
There was some suggestion on the part of the father that his inability to maintain A’s interest and develop a rapport with her during the interview with the family consultant was due to A’s tiredness and the fact that she had already exhausted the play opportunities in the room with the mother. Counsel for the father also obtained a concession from the family consultant that the father’s performance on that day may be attributable to his nervousness or general anxiety about the interview process.
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
The father submits that after the separation, the mother withheld A from the father for 30 days until the first return day of competing applications on 8 December 2006. The father argues that this is indicative of the mother displaying an attitude which evidences an unwillingness or lack of ability of her part to facilitate and encourage a close and continuing relationship between A and her father. Looking at all the evidence I do not accept that that proposition is a viable one. The circumstances that existed immediately after separation do not exist today. I find the mother is likely to continue to encourage the relationship between A and her father.
It was agreed that up until May 2009 the mother had formally sought an order for sole parental responsibility.
The mother complains about the father’s reluctance to involve her in some of A’s activities. The father has had some difficulty in facilitating and encouraging the mother to have an involvement in activities he has organised for A. The father unilaterally enrolled A in ballet class on Thursday afternoons. The father did not make any significant attempts to involve the mother in that experience for A’s benefit. The father did make some brief initial notes in the communication book. The first entry in the first communication book by the father is dated 6 March 2009. The father writes:
“[A] has been doing really well at ballet and she has been chosen to perform in a concert [in] November at 7:00pm and I think it would be great for both of us to attend regardless who has her on that day”.
Next on 21 August 2009, the father writes:
“[A] continues to do well at her swimming and she is really enjoying her ballet. She is very excited about the concert and learning her part in the show. Her class are now going to be chickens. There will be two full rehearsals on Saturday 7th and Saturday 14th November at [R] where she goes for her lessons. The exact time is yet to be advised but it will be in the afternoon. If you can’t bring her on your weekend just let me know and I will come and get her and bring her back but it would be a good opportunity for you to see how she is going. The actual concert as I have already mentioned is on at […] Theatre on […] November at 7:00pm”.
On 10 September 2009 the mother requests more information about ballet:
“I would like to learn more about [A’s] ballet lessons, could you please advise me of the appropriate person to contact so I can get involved and possibly assist with the end of year concert.”
The father responds on 14 September 2009:
“With the ballet I have put information where you can get tickets for [A’s] ballet concert, and the upcoming dates for the rehearsals, at this stage they don’t need any help.”
I am concerned by the father’s stated view that as ballet took place during the time that A spent with him, there was no need to inform the mother of it. The father gave evidence that six or seven times at drop-off, he discussed A doing well at ballet with the mother, but he acknowledged that he never said to the mother that ballet practice was on at such and such a time at such and such a place and that the mother should attend. He did assert that he invited the mother to attend the concert for which A was preparing. It was put to him that he only did so because he needed to obtain from the mother a concession that A be allowed to practice on the days she spent with the mother. The father disagreed with that proposition.
I have already commented upon the lack of reliability of the father’s evidence about the information he gave to the mother orally in relation to ballet classes. I conclude that until the father found himself in a position of having to ask for a concession by the mother, in order to allow A to attend ballet practice for an upcoming performance, the father was reluctant to include the mother in this part of A’s life.
The likely effect of any changes in the child’s circumstances
A will be starting school this year. This will be an important change in her routine.
The mother submits that her proposal would have the effect of increasing A’s security and providing a sense of belonging.
The father makes the point that since interim orders were made on 2 March 2007, A has spent five nights and six days per fortnight with her father. This has been since she was two years of age and is more than half of A’s life. The father submits that any reduction in the time that he spends with A will have the effect of damaging the father/daughter relationship, as the mother will not promote it.
The father submits that the mother advances no reason for reducing his time with A. I cannot agree with that submission. The mother has given some evidence about A’s sleep patterns, which I accept, and also A using inappropriate language. Those matters are not of great significance. Of more significance is the evidence of the family consultant as to the disruption to A now that she will have to be travelling to school each school day and the overall need for A to have a settled base.
The father’s proposal of substantial travel for A five days a fortnight is a change which is not to her benefit.
The order that I intend to make about A’s time with her father is more time than the mother proposes. An order allowing A to be with her father for four nights a fortnight (including taking her to school on two days a fortnight and picking her up from school on two days a fortnight) is an order for substantial and significant time. The time that A has already spent with both parents means that she has an attachment to them both. The change proposed is not of such significance as to be likely to affect the ability of the father to maintain his relationship with A.
The practical difficulty and expense of a child spending time with and communicating with a parent
The father lives some 26 kilometres from the mother (Exhibit “C”). The father submits that the travel and distance between the two houses of the parents has not presented any difficulties in the last two and a half years. Things however change significantly once A commences school five days a week.Although the father had a number of positions as to where A would go to school, his final position was that he wished A to go to school at V but be it at a different school than the one proposed by the mother, which is also at V. There will be considerable difficulty in getting A to and from school if she resides with the father on a week about basis. The father’s employment means that he would not always be available to do the transportation. The father asserted that he has the support of his family and stated in cross examination that his sister has offered to assist him in transporting A to school. However his sister has a three year old child as well as a newborn baby, and I do not set great store in her ability to be on hand on a regular basis to drive from her home to the father’s home to V and then back to her home on a regular basis. The father also agreed that his father goes away. The father made the general statement that his mother would be available but I have no specific evidence about that.
Mr O’s evidence
Mr O, the family consultant, had concerns about A having to do a 30 - 40 minute car trip from the father’s home V every day for a week. He opined that would be a significant amount of travelling time, creating a burden on A, getting up earlier and getting home later than other children. This would be in addition to the burden of starting school. He said maybe some children adjust better than others, but children are burdened by that extra travelling time, especially extra time due to incidents on the road in the morning.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs and the attitude to the responsibilities of parenthood demonstrated by the parents
Each party has the capacity to provide for A’s emotional and intellectual needs and has demonstrated a positive attitude to the responsibilities of parenthood.
The mother draws attention to the father’s failure to pay any child support for A, and questions why he has not done so given that he resides with his parents.
The father submits that the mother’s post separation conduct demonstrates that she has not fulfilled her parental responsibilities and is unlikely to make more time available to the father in the future. It is also submitted by the father that the mother is unlikely to develop the relationship between A and the father.
EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME
Both parents in this case seek an order for equal shared parental responsibility. I am of the view that such an order is appropriate in this case. I am therefore required under s 65DAA FLA to consider whether firstly, equal time, and if that is not ordered, secondly, whether substantial and significant time, would be in the best interests of A, whether such an order is reasonably practicable and if so, to consider making such an order.
I note the submission by the father that the consideration of equal time is mandatory and the meaning of “to consider” is a “…consideration tending to a result, or the need to consider positively the making of an order” (Goode and Goode (2006) FLC 93-286, 80,898).
The mother’s case is that A’s interests will best be served by her spending more time rather than less time with the mother. She finds some support for that submission in the opinion of the family consultant.
The father submits that equal time is in A’s best interests.
The mother’s position is supported by the opinion of the family consultant. The family consultant was directly invited to comment as to whether or not he regarded the mother’s proposal as adequate. Mr O responded:-
“I think it would be an arrangement that may assist [A] to feel more settled or secure with one party, given the distance between them and also given my observation of [A’s] relationship with her mother. Given her age, and she is just starting school, that may be of benefit to her.”
I have reservations as to whether the father is seeking equal time because he believes that such an order would be in A’s best interests, or whether he is seeking such an order on the basis of his view that as A’s father he is entitled to equal time. In cross examination the father stated that he agreed with the family consultant’s opinion that A’s primary attachment is to her mother, however he disagreed with the family consultant’s opinion that A has a more secure relationship with the mother, and he stated that he has a better relationship with A than as assessed by the family consultant. He also stated that he disagreed with the opinion of the family consultant that the long term benefit of A spending more time with the father is questionable, and that A’s interest would better be served by spending more time with her mother rather than less time.
The father was asked by counsel for the mother about his statement to the family consultant that six days and four nights a fortnight with A was too short. The father replied that he had meant that six days and four nights a fortnight was less than what he wanted, not that that period of time was too short for him to have a relationship with A. This evidence of the father causes me some concern, in that it suggests a preoccupation with what he perceives are his rights as a father rather than what is in the best interests of A. This was something that the father was cross examined about specifically. In response to a question about what would prevent him from bonding with A on alternate weekends and half school holidays, the father replied that he did not think that was “fair”. It was then put to him by counsel for the mother that these proceedings were, from the father’s perspective, about what the father thought was fair rather than what is beneficial to A. The father disagreed with that proposition. However, he then acknowledged that it is his view that as A’s father, he is entitled to a week about arrangement.
A consideration of equal time or substantial and significant time requires me to have regard to the factors under s 65DAA(5) FLA, specifically:
How far apart the parents live from each other.
88.1.As already mentioned, the parties live more than 26 kilometres apart and any movement between the father’s home and the school that A will be attending will occur during peak traffic periods. This would necessitate A leaving home earlier and getting home later than she would while living with the mother in the V area. I am mindful of A’s age. The family consultant stated that in his opinion, children are burdened by that extra travelling time which comes in addition to the burden of starting school. I have already referred to the lack of specific evidence in the father’s case, as to how transportation to school would be regularly achieved.
The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents.
88.2.Apart from the issue about pre-school on Thursdays, both parents have demonstrated a capacity to implement arrangements, although as I say, the father had not in my view fully worked out how, on his proposal, he would get A to school and back again five days in one school week.
The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.
88.3.The family consultant, Mr O, was asked whether or not a communication book was an appropriate way for shared parenting to be conducted. His response was in the following terms:
“I guess my thought on that would be that if it is looking at a shared parenting arrangement, then the notion of a shared parenting arrangement, I often assume that the parents have the capacity to be able to communicate and cooperate in a very productive and cooperative manner. Communication books are often the last resort, sadly, for parents who are unable to communicate cooperatively or with openness, that may assist the child. I mean a communication book is often not productive and can lead to other complications.”
88.4.The parties have little capacity to communicate with each other face to face and resolve difficulties. Their oral communication is minimal. The mother instituted the communication book which has been the primary means of communication between the parties. That communication book is detailed, civil and well-organised, with typed entries from each party that have been cut out and pasted into the book. The parties of course still cannot resolve their difficulty in relation to which school A goes to and requires the court to make the determination for them. Counsel for the father during final submissions, suggested that the parties had been able to agree on some things but when I asked him to detail what they were, he could only suggest that the father had abandoned the concept of A going to a school in another suburb once he became aware that it was important to the mother for A to go to a school close to V. When pressed as to where the evidence for that would be, he was unable to indicate where I might find it and I have not been able to. Reference was made to Father’s Day arrangements but that hardly was an example of the parties displaying a capacity to communicate. There was some evidence that the parties had been able to arrange Christmas 2008 between themselves. Overall, I find that, only being able to communicate via the communication book is a poor foundation for a co-parenting arrangement and whilst not decisive, points against ordering one.
The impact that an arrangement of that kind would have on the child.
88.5.The mother submits that a week about arrangement would be too disruptive for A. The opinion of the family consultant supports that view.
88.6.Mr O was asked to expand on his opinion about what disruption the father’s proposals might cause to A now she was commencing school. His response was in the following terms:
“Well, the disruption I have just been I guess alluding to in the sense that the disruption in her sense of stability in her environment, the disruption to her sense of stability and belonging to a household, I guess, the disruption also possibly to, you know, children often after school have activities in their own community or have friends in their own community and it is part of their disruption to their social network or disruption to their identity with a particular area to which they live or go to school. There’s a whole lot I guess of psyche-social dimensions that are involved in children starting school that are not just dependent on the classroom but are impacted on their sense of their community as well. The problem I guess often with children in a shared arrangement is they have quite a schizophrenic relationship with their local community and it’s kind of partitioned for them in some degree.”
88.7.I agree that an equal time arrangement whereby A would be driven from the father’s home to V and back five times a week would be too disruptive for her.
Such other matters as the court considers relevant.
88.8.There are none.
Having considered those matters, I conclude that it is not reasonably practicable for A to spend each alternate week with her parents during school term. Nor do I consider that it is in A’s best interest to do so and accordingly I will not make an order that A spend each alternate week during school term with each of her parents respectively.
I then need to consider whether or not I should make an order for A to spend substantial and significant time with her father.
What constitutes substantial and significant time is defined by s 65DAA(3) FLA. The order that I propose will allow A to spend time with her father, both on days that fall on a weekend and holidays and days that fall during school term. It will also allow A to spend time with her father so that her father is involved in A’s daily routine and occasions and events that have particular significance to A and that are of particular significance to the father.
I conclude that it is in A’s best interests, having regard to all matters set out in s 60CC FLA, for her to live primarily with her mother but spend time with the father during school term from after school on Friday afternoon to the commencement of school on Tuesday morning each alternate week and for half of school holidays and for other special days.
The mother applied for an order that A live with the father at the paternal grandparent’s home. There is insufficient evidence to support an application that such an order be made on a final basis and I will not make that order.
Also, the mother applied for an order that neither party denigrate the other. Again, there is insufficient evidence to suggest that that order is appropriate on a final basis.
SCHOOLING
For much of the litigation between the parties, the father’s proposal was for A to receive private school tuition at D Private School, from kindergarten to year 12. The father and his family had offered to pay for this tuition. That proposal was abandoned by the father at a fairly late stage. The father at trial says he has abandoned any hope that the mother will agree to sending the child to D School (and presumably had realistically assessed that the court would not be attracted to that proposal given where the mother lives).
Whilst the parties agree that there should be an order for equal shared parental responsibility, they have not been able over a considerable period of time, to reach agreement about what primary school A should attend. This is symptomatic of the difficulties that they have in communicating with one another about A.
At the end of the hearing, the issue in relation to schooling became a far narrower one than it had previously been. It became a competition between L Catholic School, a school with which the mother had considerable experience, and the M Public School, which was not well known. Exhibit F is a printout from SchoolWebsites.com.au providing information about the M Public School. That information indicates that M is a perfectly adequate public school. The father had produced these documents by printing them out from the website. He did not give any evidence that he had actually been to the school or had any contact with the principle or any of the teachers at the school.
As a result of the decision that I have made in relation to the time that A will spend with both her parents, it will be the case that the mother will be the person who is predominately attending to A’s needs during school term. The competition between the schools therefore is between a school the mother knows and has confidence in and a school that the father wishes A to go to because he was uncomfortable with A going to a Catholic school. The father’s primary objection to the Catholic school was he did not believe that he would be able to fully participate with A in the life of that school. He was of the view that he would not be able to involve himself in a parish life if that was necessary. He also was of the view that he would not be able to fully involve himself in any homework involving any religious education that A might receive at the school.
This is a school that the other child in the mother’s household, S, went to. S did not partake in the sacraments. S was able to be involved at L School without having any requirement to undertake or embrace the Catholic faith at all. It is clear that that is what the mother envisages in relation to A.
Given the mother’s previous involvement with this school, she is comfortable with it, knows the personnel there and knows families who have children attending the school. The mother is unaware as to what families have children going to M School. She simply has not made any inquiry in that regard.
The father led no evidence that there was something significantly wrong with the mother’s proposal (apart from some evidence that he gave orally that S may have had some difficulties with some part of her education). The mother however was not tested during cross examination as to any difficulties that S might have had at the school.
I conclude that it is in A’s best interests for her to attend L Catholic School commencing in 2010 and, unless the parties otherwise agree, complete her primary education at that school.
COSTS CERTIFICATE
At some previous time, Flohm J disqualified herself in respect of hearing this case because of a previous involvement Flohm J had had in hearing a case involving the mother and S’s father (who, the parties before me agreed, was a known paedophile). I dismissed the joint applications for cost certificates.
Both parties applied for a certificate pursuant to s 10(3) Federal Proceedings (Costs) Act 1981 which provides the court may grant a certificate to a party in respect of proceedings which have been discontinued through no neglect, default or improper act of a party to those proceedings and in which a new hearing has been ordered. However, it was conceded that the hearing in respect of which the application was made had not actually commenced. Accordingly, I find there is no basis for making an order under the Act for the granting of a certificate.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 29 January 2010
Key Legal Topics
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Family Law
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Appeal
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Jurisdiction
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