Sherwin and Sherwin
[2009] FMCAfam 777
•18 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHERWIN & SHERWIN | [2009] FMCAfam 777 |
| FAMILY LAW – Parenting – final parenting orders – alteration to include additional overnight time to end of 2009 school year. |
| Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 61DA, 65DAA, 65DAA(3), 65DAA(5) Federal Magistrates Courts Rules 2001, r.16.05(2)(e) |
| Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295 |
| Applicant: | MS SHERWIN |
| Respondent: | MR SHERWIN |
| File Number: | MLC 1365 of 2008 |
| Judgment of: | Monahan FM |
| Hearing dates: | 16-18 June, 23-24 July 2009 |
| Date of Last Submission: | 24 July 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Glover |
| Solicitors for the Applicant: | David Stagg Tonkin & Co |
| Counsel for the Respondent: | Mr J. Williams |
| Solicitors for the Respondent: | Slater & Gordon Pty Ltd |
ORDERS
THE COURT ORDERS THAT:
Paragraph 4(a) of the Orders made 18 December 2008 be varied as follows:
“(a)at the commencement of the 2010 school year, each alternate week during school term from after school Friday until the beginning of school on Wednesday; and
(aa)until the end of the 2009 school year, each alternate week during school term from after school Friday until the beginning of school on Monday (or Tuesday morning if the long weekend) and each Wednesday commencing 7 October 2009 from after school until the commencement of school the following morning.”
Pursuant of section 13C of the Family Law Act 1975 the Wife and the Husband:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party.
IT IS NOTED that publication of this judgment under the pseudonym Sherwin & Sherwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1365 of 2008
| MS SHERWIN |
Applicant
And
| MR SHERWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case commenced with an application filed 15 February 2008 by Ms Sherwin (“the wife”) seeking various property orders. This application (as amended by the wife’s “further amended application” filed 11 June 2009) is opposed by the respondent Mr Sherwin (“the husband”) who, in his response filed 31 March 2008, seeks different property orders. In addition, the husband also sought various parenting orders in his response. These parenting orders were opposed by the wife who sought different orders in her “amended application” filed 16 April 2008.
Final parenting orders were made by me with the consent of the parties on 18 December 2008 (“the final parenting orders”). These final parenting orders are discussed shortly.
When the property matters came on for hearing before me over five days commencing 16 June 2009 (and concluding 24 July 2009), the husband sought a variation to the final parenting orders which was opposed by the wife. The discrete issue in dispute is whether the three children of the marriage should spend overnight time with the husband from after school Wednesday until before school Thursday during school terms until the end of 2009.
Both parties were legally represented at the hearing of this dispute; the wife by Mr Glover of Counsel and the husband by Mr Williams of Counsel.
Following closing submissions, I indicated to the parties that I proposed to deliver a decision in relation to the discrete parenting dispute as soon as possible and separately delivering my decision in relation to the property dispute at a later date.
Background
The wife was born in 1974 and is currently aged 35 years. The husband was born in 1972 and is currently aged 37 years. The parties met in early 1992 and commenced cohabitation following their marriage in 1997.
There are three children of the marriage; namely, [X] born in 2002, [Y] born in 2003 and [Z] born in 2006 (“the children”).
After several years of unhappiness the parties separated on 1 October 2006 and a divorce order was made on 30 October 2008 (that became final on 1 December 2008).
The children have primarily lived with the wife (and spent time with the husband) since separation.
The matter initially came before her Honour, Hughes FM, on 2 April 2008. On that occasion her Honour made various orders with the consent of the parties. While these orders primarily related to the property dispute, the following orders related to their then parenting dispute:
“5A. The wife file and serve a response to the husband's application to shared care of the children on before 16 April 2008.
…
9. The husband's application for interim children's orders and any response be adjourned to the duty list of 17 June 2008 at 9.45am.”
These orders also include concluded the following ‘Notation’:
“The parties have an appointment for interviews with Mr Trevor Holland on 29 April 2008 and anticipate a report could be released on or before 15 May 2008.”
Mr Holland did indeed provide the parties with his family report dated 7 May 2008. Subsequently, the parties provided the Court with the original copy of Mr Holland’s report. Mr Holland describes his interview with the parties and the children on pages 3-5 of his report. Mr Holland provides his evaluation on pages 5-6 of his report. Of particular relevance to the dispute before me is Mr Holland’s comments on page 6 of his report:
“At interview the parties were able to come to an agreement on extending the alternate weekend to time to Monday am, and keeping the weekly Wednesday to Thursday arrangement. I recommended to the parties that they should consider converting the visitation time to block format when [Z] turns 3 in March 2009. This would reduce the amount of movement between homes, and the disruption to [X]'s and [Y]'s schooling by eliminating the mid-week changeover.
This would require Mr Sherwin to reorganize his working commitments to free up Mondays to look after [Z]. Ms Sherwin asked for the return of [Z] to her care on Mondays, if this was not possible on some occasions. Mr Sherwin agreed to this condition and indicated that he saw it as appropriate.
In conclusion, both parties presented as insightful around the difficulties of their past relationship and the developmental needs of the children in this post separation period. They both appear to be moving forward with their lives, and despite the adjustment difficulties they may have both experienced around the separation they presented as child focused and able to communicate and co-operate relatively well. It is hoped that as time progress’s [sic] they will be able to develop their co-parenting of the children to increasing levels of sophistication and maturity.”
Mr Holland thereafter provided three specific “recommendations” on page 6 of his report:
“1. The children [X], [Y] and [Z] live with Ms Sherwin.
2. The children spend time with Mr Sherwin each Wednesday pm to Thursday am and each alternate weekend Friday pm to Monday am.
3. The children spend half of all school holidays with Mr Sherwin, with consideration given to taking the long summer break in alternating weeks to minimize the length of time the children are away from either parent.”
Interim parenting orders were made by Hughes FM (mostly with the consent of the parties) on 17 June 2008. The consent orders provided inter alia that:
·the husband and wife have equal shared parental responsibility for the children;
·the children live with the wife; and
·the children spend time and communicate with the husband “each alternate weekend commencing 20th of June 2008 from 4.30pm Friday until commencement of school [or] 8.30 am Monday”.
In addition, her Honour made orders (without the consent of both parties) that the husband spend time and communicate with the children as follows:
·“each Wednesday from 4.30 pm until school or 8.30 am Thursday each week”;
·“for one half of all school term holidays being the first week in even numbered years and second week in odd numbered years”;
·“from 5.00pm the Saturday before Father's Day until school or 8.30am Monday”;
·“at other times as agreed”; and
·“by telephone or email at all reasonable times.”
As previously stated, I made final parenting orders, in terms of a Minute of Consent Orders signed by the parties and dated 18 December 2008, as follows:
“1. That all previous parenting orders be and are hereby discharged.
2. That both the husband and wife have equal shared parental responsibility for the long term and day to day care welfare and development of [the children] …
3. That the children live with the wife.
4. That the children spend time and communicate with the husband as follows:
(a) Each alternate week during school term from after school Friday until the beginning of school on Monday, or Tuesday morning if the long weekend, with such time to be extended until the beginning of school on Wednesdays from the start of the first school term in 2010.
(b) For one half of all school term holidays, with changeover to occur at 5.00 pm on the middle day of such holidays, at times to be agreed, or in default of agreement, the first half in even years and the second half in odd numbered years. The commencement of school term holiday time in the first half shall commence at the conclusion of school and the conclusion of school term holiday time shall conclude at 5.00 pm the night before school commences.
(c) For one half of the long summer vacation on a week about basis as agreed, or in default of agreement, the first week in even numbered years and the second week in odd numbered years, with the commencement of time being at 10.00 am the day after school concludes and terminating at 5.00 pm the day before school commences.
(d) The alternate weekend and week time where applicable recommence as if holiday time had not occurred.
(e) On Father's Day from 5 pm the evening before until 5 pm Father's Day and, should the father's time with the children fall on Mother's Day, the father's time be suspended from 5 pm the evening before until 5 pm Mother's Day.
(f) For a period of two hours of the children's birthday if same falls on a weekday and for four hours if same falls on a weekend, by agreement between the parties and, failing agreement, from 9 am to 2 pm if a weekend (subject to the wife having the same time if the children are otherwise in the care of the father).
(g) On the husband's birthday at times to be agreed and, failing agreement, the two hours after school if same falls on a weekday and for four hours on a weekend if same falls on a weekend (subject to the wife having the same time on her birthday if the children are otherwise in the care of the husband).
(h) From 3 pm Christmas Eve until 3 pm Christmas Day in 2008 and each alternate year thereafter and from 4 pm Christmas Day to 3 pm Boxing Day in 2009 and each alternate year thereafter.
(i) By telephone at reasonable times.
(j) Such further or other times as the parties agree.
[Section 65DA(2) and section 62B of the Family Law Act 1975 particulars]”
The wife’s solicitors engrossed the relevant Minute of Consent Orders and forwarded same to the Court in their letter dated 3 February 2009 (received 6 February 2009). The following business day the Court forwarded the final parenting orders to the parties.
In the “Minutes of Orders proposed by the Husband”, handed up in Court during the hearing of this matter in June-July 2009, the husband sought the following order in relation to parenting:
“14. That the Orders of the Court made 18 December 2008 be varied by adding to paragraph 4 provision for the husband to spend time with the children as follows:
a) During school terms, each Wednesday from after school or 3.30 pm until the commencement of school the following morning or 9.00 am Thursday until the end of the 2009 school year.”
The proposed change to the final parenting orders sought by the husband was opposed by the wife.
Evidence of the parties
In respect of this discrete parenting dispute, both parties provided the Court with oral evidence and the husband also provided evidence by affidavit. Both parties filed numerous affidavits relevant to the property dispute (and the broader parenting dispute prior to the making of the final parenting orders).
Respondent husband’s evidence
In support of his application for a change to the final parenting orders, the husband relied on his affidavit sworn on 22 May 2009 and filed on 11 June 2009 (“his affidavit”).
In paragraph 4 of his affidavit, the husband refers to paragraph 3(b) of the interim orders made by Hughes FM on 17 June 2008, which provided that “the Husband spend time and communicate with the children …each Wednesday from 4.30 pm until school or 8.30 am Thursday each week”. The husband goes on to assert that:
“… the order was made by the Court after a contested hearing on that issue as well as issues of my time with the children during school term holidays and Father's Day weekend”.
The husband further goes on to assert in paragraphs 5-8 of his affidavit that he believed that the issue of the children spending Wednesday overnight time with him was not in dispute with the wife when the matter came before me for final hearing of the parenting matters on 18 December 2008.
In paragraph 9 of his affidavit, the husband states:
“I first became aware of the errors in the Orders made
18 December 2008 at the commencement of the first school term in 2009. I was endeavouring to make arrangements with
Ms Sherwin for the children to spend time with me on the night of Wednesday 4 February 2009 when Ms Sherwin told me that the Orders do not provide for the children to spend that time with me. I contacted my solicitors on 4 February and discussed the orders with them. My solicitors confirmed that the Minutes make no provision for my spending [Wednesday] overnights with the children. I instructed my solicitors to raise the issue with
Ms Sherwin’s solicitors and to seek their cooperation in correcting the Orders. Annexed hereto marked with a letter “A” is a true copy of my solicitor's letter to David Stagg Tonkin & Company dated the 9 February 2009.”
In paragraph 10 of his affidavit, the husband asserts that following receipt of a sealed copy of the final parenting orders, he instructed his solicitors to forward a further letter to the wife’s solicitors seeking the wife’s agreement to amend the orders.[1]
[1] Husband's affidavit sworn 22 May 2009 and filed 11 June 2009, ‘Annexure B’.
In paragraph 11 of his affidavit, the husband asserts that his solicitors subsequently received a letter from the wife’s solicitors dated
13 February 2009 stating inter alia:[2]
[2] Ibid, ‘Annexure C’.
“… it is our recollection that your client did not request Wednesday overnight visits with the children. That is also our client's recollection.
In our view, the “substance of the previous interim orders” has been encapsulated in the existing orders.
Our instructions are that the orders are not to be amended pursuant to the “slip rule” …”
In paragraph 12 of his affidavit, the husband asserts that his solicitors made a “last attempt” to resolve this dispute in their letter to the wife’s solicitors dated 13 March 2009.[3]
[3] Ibid, ‘Annexure D’.
The husband also gave oral evidence at the final hearing. He admitted under cross-examination from Counsel for the wife, Mr Glover, that he only had “a brief read over”[4] the relevant consent minutes before the final parenting orders were made by me in December last year. The husband went on to assert his view that both he and the wife (and their respective lawyers) had made a mistake in relation to this issue on that day.[5] In answer to a question from Mr Glover clarifying whether the husband took any responsibility for the alleged “mistake” made that day, the husband responded:[6]
“… I said that I was responsible. Just then I just said I was responsible so don't start saying that I'm blaming Ms Sherwin. What I'm blaming Ms Sherwin for is not being able to negotiate with me to get those Wednesday nights back. It is clearly stated and it has been clearly done since we're separated that we've had Wednesday nights and then it is also stated in our writing or in John Williams' [his barrister’s] writing that we expect those Wednesday nights to be resumed back after the holidays. I honestly did not understand that I would not be getting the Wednesday nights back because of the paragraph that was put in by John on our behalf. There was no mention at all between me or Ms Sherwin during the school holidays until I rang up waiting at home for the kids to be delivered to me.”
[4] Transcript, 18 June 2009, page 129, line 5.
[5] Ibid, lines 31-33.
[6] Ibid, page 129, line 38 to page 130, line 4.
Applicant wife’s evidence
The wife did not file any affidavit in reply to the husband’s affidavit (relevant to this discrete parenting dispute). The wife was, however, cross examined by Counsel for the husband, Mr Williams, in relation to this particular dispute. In her evidence the wife agreed that in her affidavit sworn 2 December 2008 and filed 3 December 2008, she had stated in paragraph 68:[7]
[7] Transcript, 17 June 2009, page 78, lines 16-20.
“While I have some reservations about the respondent’s parenting capacity, I am happy for the current regime and the regime foreshadowed by the family report writer to be put into place.”
After admitting that her lawyers had received correspondence in relation to the alleged mistake in the final parenting orders, the wife was asked by Mr Williams:[8]
[8] Transcript, 17 June 2009, page 80, lines 17-44 to page 81, lines 1-9.
“Clearly, madam, I just want to give you one opportunity for the sake of your children and their relationship with their father, do you agree that it's in the children's best interests in view of that history that I've set out to you that the Wednesday night, there's been a mistake, and the Wednesday night should be reinstated?”
“I thought that the changes had come because all the changes that were being made to the children's orders, that that was what his intention was in exchange for other changes that were being made at the time that I signed these orders.”
“Madam, could you please answer the question. I'm putting to you that it was in the best interests of your children - not your interests, the best interests of the children, because it was agreed between your husband and you, and it was agreed by you in the affidavit, it's in the best interests of the children that they see their father Wednesday night overnight as they have done in the past?”
“This year that they haven't been going Wednesday night, they are by far absolutely more settled in school, more settled in their home life, more settled with their friends. They seem to be thriving more without driving backwards and forwards.”
“Madam, I suggest to you that this is an example of you turning the screw on the husband, that is that when you've got an opportunity to hurt him, you'll take it, and there could be nothing more to hurt him than depriving him of his children on a Wednesday night?”
“My children - their best interests will always be my utmost priority, and they are more settled at school.”
“They love their dad and they'd like to see their dad on a Wednesday night, wouldn't they?”
“They haven't ever made that comment.”
“You see, when you look at the minutes that I've handed to you that the other words were not written by your side, but came from this side of the table, it refers to the midweek time, doesn't it? What it says is, if you go to paragraph 4(d), page 2, it says, “The alternate weekend and week time, where applicable, recommences if holiday had not occurred.” What it's referring to there, madam, is the understanding that the Wednesday time would continue until the block time next year kicks off, because there's no other week time that can be referred to. Do you have an answer?”
“I took that as in the Friday, Saturday, Sunday, Monday.”
The law
The Court is being asked by the husband to make a very specific change to the final parenting orders made in December last year that would enable the children to spend additional overnight time with him from after school on Wednesday until before school the next day. If the Court was mindful to make such a change to the existing parenting orders, then pursuant to section 60CA of the Family Law Act 1975 (“the Act”), the Court must be satisfied that such is in the best interests of the children.
Prior to considering whether such a change is in the children's best interests, there are two preliminary issues that I should consider. Firstly, assuming an error was made, whether the final parenting orders could be amended using the ‘slip rule’;[9] and secondly, whether the ‘rule in Rice & Asplund’ would prevent the Court from making any change to the final parenting orders. No submissions were made by either party in respect of these preliminary issues.
[9] Rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001.
Under Rule 16.05(2)(e) of the Federal Magistrates Courts Rules 2001 (“the Rules”):
“the Court may vary or set aside its judgment or order after it has been entered if … the order does not reflect the intention of the Court”
Courts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended.[10] After an order has been made a Court will not, unless with the consent of the parties, permit the order “to be altered without a rehearing, except in cases of mistakes or errors arising from accidental slips or omissions.”[11] In this case, there is a disagreement between the parties as to whether the final parenting orders (made by me with the consent of the parties), reflected the intention of the Court. Given these circumstances, the ‘slip rule’ has no application in the present dispute.
[10] See e.g., Bailey v Marinoff (1971) 125 CLR 529; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Russell & Russell [1999] FamCA 1875; (1999) FLC 92-777; (1999) 25 Fam LR 629; Milham & Stanford[2001] FamCA 294; (2001) FLC 93-073; (2001) 27 Fam LR 556.
[11] Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210 (per Lockhart J) referring to In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905 (per Evatt CJ).
In relation to the second preliminary issue, the ‘rule’ in the case of In the Marriage of Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 (“Rice & Asplund”) is that where a final parenting order has been made, the applicant must establish a significant change of circumstance before the Court will entertain a rehearing of those issues.[12] If the Court did not adopt such an approach, then, to quote Evatt CJ in Rice & Asplund, the result “would be to invite endless litigation for change is an ever-present factor in human affairs”.[13] That having been said, it has also been determined, to quote Warnick J in the case of SPS v PLS [2008] FamCAFC 16; (2008) 39 Fam LR 295, that:
“… the rule may not impede hearing of an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.”
Given the minor nature of the parenting dispute before me, I am satisfied that a determination is warranted.
[12] SPS v PLS (2008) 39 Fam LR 295 at 297 (per Warnick J).
[13] In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 at 572; (1979) FLC 90-725 at 78,905.
Section 61DA of the Act incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. The presumption is not a relevant issue in this dispute as the final parenting orders provide for the husband and wife to “have equal shared parental responsibility for the long term and day to day care welfare and development of [the children].”
If a parenting order provides (or is to provide) for equal shared parental responsibility, then the Court is required under section 65DAA to consider whether the children’s best interests would be served by making an order that they spend equal time,[14] or alternatively substantial and significant time,[15] with each of their parents. Either outcome requires the Court to consider whether the children spending equal time (or substantial and significant time in lieu) with each of their parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
[14] Section 65DAA(1) of the Act.
[15] Section 65DAA(2) of the Act.
It is note worthy that section 65DAA(3) stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
In considering the reasonable practicality issue, section 65DAA(5) requires the Court to have regard to matters including how far the parents live from each other, the current and future capacity of the parents to implement an equal time (or substantial and significant time) arrangement and the impact of such an outcome on the children.
The final parenting orders do not provide for an equal time arrangement. The final parenting orders do, however, provide for the children to spend substantial and significant time with the husband on a three nights per fortnight basis during school term (i.e. after school Friday to before school Monday) until the end of the 2009 school year and, from the commencement of the 2010 school year, on a five nights per fortnight basis during school term (i.e. after school Friday to before school Wednesday). If the final parenting orders are varied, as requested by the husband, then the children would spend five nights per fortnight during school term with their father with immediate effect. That would reflect the interim orders that had been in place during much of 2008 (i.e. five nights in total per fortnight) before reverting to a block time format of five nights per fortnight from the commencement of the 2010 school year. Given these circumstances, the requested variation does not seem unreasonable. Nevertheless, such a change must still be in the best interests of the children. Given the background to, and the effect of, the final parenting orders, there is no issue of concern arising under section 65DAA(5).
To determine whether this change is in the best interests of the children, the Court must consider the primary and secondary considerations under section 60CC of the Act.
The “primary considerations” are set out in section 60CC(2).
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
It is clear from the evidence of the parties that both accept the need for the children to have a meaningful relationship with other parent. It is clear from the evidence of the parties, and from the recommendations in the family report, that there was general agreement that the children’s best interests would be served by them living with the wife and spending time with the husband five nights per fortnight during school term.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This “primary consideration” is not relevant to the current dispute.
In determining the best interests of the child, the Court is also required under section 60CC(3) to consider “additional considerations” where relevant.
Section 60CC(3)(a): any views expressed by the child …that the court thinks are relevant to the weight it should give to the child's views
In his family report, Trevor Holland stated on page 4:
“All three children are at an age and stage that make it unlikely that they can contribute at a cognitively meaningful level to the discussion on time spent with their father.”
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There are no concerns about the nature of the relationship of the children with each of the parties. In his family report, Trevor Holland stated on page 4:
“… all three children were able to move between their parents without any visible signs of anxiety, apprehension, or discomfort, and both parents were appropriately affectionate and attuned to the children's needs during the course of the long interview process.”
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
The wife’s decision to oppose the request made by the husband to vary the final parenting orders in 2009 (only) to reflect the interim orders that had existed during much of 2008, is unfortunate. The Court has no doubt that the wife viewed the Wednesday overnight time as disruptive and not in the best interests of the children. To some extent this view was supported by the family report writer, Trevor Holland. Nevertheless, it is also clear that the wife supported the five nights per fortnight block time arrangement recommended by Mr Holland. In paragraph 61 of her affidavit sworn 2 December 2008 and filed 3 December 2008, she states:
“… I am not against the recommendation that the children spend time with their father each alternate Friday, Saturday, Sunday, Monday and Tuesday.”
Despite Mr Holland’s optimism “that as time progress’s [sic] [the parties] will be able to develop their co-parenting of the children to increasing levels of sophistication and maturity”,[16] the party's inability to resolve this current dispute between them is a cause for some concern. The Court hopes that once the property matters are finalised between the parties, the obvious hostility that still exists between them will diminish.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
[16] Trevor Holland, Family Report, 7 May 2008, page 6.
There will be a change to the children’s circumstances if the variation sought by the husband to the final parenting orders is made. That having been said, the children were spending every Wednesday night with the husband during much of 2008 and will be moving to a five nights per fortnight block time arrangement early next year.
Section 60CC(3)(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 are no relevant difficulties and expenses related to the children spending some additional time with the husband until the end of the 2009 school year.
Section 60CC(3)(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
This consideration is not relevant to the present dispute.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
This consideration is not relevant to the present dispute.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I reiterate my earlier comments that the party’s inability to resolve this current dispute between them is a cause for some concern. Consequently, I have formed a view that the parties would benefit from undertaking a post-separation parenting course to better understand the responsibilities of parenthood.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
This consideration is not relevant to the present dispute.
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child's family …
This consideration is not relevant to the present dispute.
Section 60CC(3)(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
This consideration is not relevant to the present dispute.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There is no other of fact or circumstance that the Court thinks is relevant in the present dispute.
The Court is also required under section 60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent…” In this case both the wife and the husband have been actively involved in the children’s lives and, despite this particular disagreement, the evidence suggests they have been generally able to make the necessary major long-term decisions in relation to the children.
Conclusion
I am satisfied that it is in the best interests of the children to vary the final parenting orders as requested by the husband. Consequently, the Court will make orders to that effect.
As indicated above, I have also formed a view that the parties would benefit from undertaking a post-separation parenting course and an order to that effect will also be made.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Monahan FM
Deputy Associate: Matthew Raggatt
Date: 16 September 2009.
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