Spring & Spring
[2024] FedCFamC2F 19
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spring & Spring [2024] FedCFamC2F 19
File number(s): LNC 559 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 19 January 2024 Catchwords: FAMILY LAW – PARENTING - whether the children should continue to live in an equal time arrangement for the next two-three years or a five/nine arrangement, building to an equal time arrangement – where it is agreed that an equal time arrangement will be implemented by no later than some time in 2026 – weight to be given to the recommendations of the court child expert Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 61AB, 61B, 61C, 61DA, 65D, 60CC, 65DAA, 65DAC, PartVII Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Boyce & Boyce [2015] FamCAFC 60
Briginshaw v Briginshaw (1938) 60 CLR 336
Dundas & Blake [2013] FamCAFC 133
Godfrey & Sanders [2007] FamCA 102
Goode & Goode [2006] FamCA 1346
Koyroyshs & Koyroyshs [2020] FamCA 626
Marvel & Marvel (No 2) [2009] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR (2010) 240 CLR 461
Robertson & Sento [2009] FamCAFC 49
Withers & Russell [2016] FamCA 793
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 8 December 2023 Date of hearing: 7 & 8 December 2023 Place: Launceston Counsel for the Applicant: Mr R Murray Solicitor for the Applicant: Murray & Associates Counsel for the Respondent: Ms A Trezise Solicitor for the Respondent: Andrea Trezise ORDERS
LNC 559 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SPRING
Applicant
AND: MR SPRING
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.Ms Spring (‘the Mother’) and Mr Spring (‘the Father’) have the equal shared parental responsibility for the children X born in 2017 and Y born in 2019 (‘the children’).
Time during School Terms
2.From the commencement of X’s school term 1, 2024, until the conclusion of his term 4, 2025, the children will live with the Mother and spend time with the Father each alternate week from 3.00pm Wednesday until 9.00am the following Monday, commencing in the week the Father historically has the children in his care with that pattern continuing thereafter.
3.From the commencement of X’s school term 1, 2026, until the conclusion of his term 2, 2026, the children will live with the Mother and spend time with the Father each alternate week from 3.00pm Tuesday until 9.00am the following Monday.
4.From the commencement of X’s school term 3, 2026, the children will live in an equal time, week-on/week-off arrangement, with the changeover to occur from Monday 3.00pm each week.
Time during School Holidays
5.The children spend equal time with each parent during each of the midyear school holiday periods at times to be agreed in writing beforehand, but failing agreement, during the first week from the conclusion of school or 3:00pm to such day at 3:00pm representing the mid-day of that holiday period, starting with the parent who did not have the children for the weekend immediately preceding the commencement of such holiday period.
6.The children spend equal time with each parent during the Christmas/New Years school holiday period each year on a week about basis at times to be agreed in writing between the parties beforehand, but failing agreement, during the first week from the conclusion of school or 3:00pm with changeovers at 3:00pm each 7th day thereafter, starting with the parent who did not have the children for the weekend immediately preceding the commencement of such holiday period.
Special Days
7.Notwithstanding any other Order the Mother spend time with the children as follows:
(a)From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2023 and every second year thereafter;
(b)From 3:00pm Christmas Day until 3:00pm Boxing Day in 2024 and every second year thereafter;
(c)If Mother’s Day falls on a day when the children would not otherwise be in the care of the mother from 3:00pm on the day preceding Mother’s Day until 3:00pm on Mother’s Day;
(d)From 3:00pm Easter Thursday until 3:00pm Easter Tuesday in 2025 and every second year thereafter;
(e)If the children are not otherwise in the care of the Mother on each of the children’s Birthdays, then from 3:00pm until 6:00pm on each Birthday.
(f)If the children are not otherwise in the care of the Mother on the Mother’s Birthday, then from 3:00pm until 6:00pm on the Mother’s Birthday.
8.Notwithstanding any other Order the Father spend time with the children as follows:
(a)From 3:00pm Christmas Day until 3:00pm Boxing Day in 2023 and every second year thereafter;
(b)From 3:00pm Christmas Eve until 3:00pm Christmas Day in 2024 and every second year thereafter;
(c)If Father’s Day falls on a day when the children would not otherwise be in the care of the Father from 3:00pm on the day preceding Father’s Day until 3:00pm on Father’s Day;
(d)From 3:00pm Easter Thursday until 3:00pm Easter Tuesday in 2024 and every second year thereafter;
(e)If the children are not otherwise with the Father on each of the children’s Birthdays, then from 3:00pm until 6:00pm on each Birthday;
(f)If the children are not otherwise with the Father on the Father’s Birthday, then from 3:00pm until 6:00pm on the Father’s Birthday.
9.The children spend such further or alternate time on special days with each parent as may be agreed from time to time in writing.
Handovers
10.Changeovers on school days will be to and from the children’s school or schools with changeovers on non-school days to be at the B Park in Suburb C or such other place as agreed in writing by the parties beforehand.
Our Family Wizard
11.The Mother and Father will continue to communicate through the Our Family Wizard App save for urgent matters or in emergencies.
Phone and video calls
12.When the children are spending time with one parent, they have phone or video calls with the other parent every second day.
Recording of conversations
13.The Father be and is hereby restrained from recording his interactions with the Mother.
Other
14.Save for these Orders, all extant parenting Orders are discharged.
15.All extant parenting applications are otherwise dismissed.
THE COURT NOTES THAT:
A.The Mother and Father consented to all Orders set out above, save for those set out at paragraphs 2, 3 and 4.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
These are parenting proceedings concerning the children, X born in 2017 and Y born in 2019 (‘the children’). X and Y attend D School, with X in prep and Y in Early learning.[1] As reported by the Court Child Expert, ‘[X] and [Y] are delightful children, who have the benefit of two caring attentive parents and access to high quality education, activities and therapy.’[2]
[1] Affidavit of Ms Spring, 5 December 2023 [19] (‘Mother’s Affidavit’).
[2] Child Impact Report Addendum of Ms E, 1 November 2023 [10] (‘Addendum Report’).
The Mother, Ms Spring (‘the Mother’), initiated proceedings on 30 August 2022 seeking orders for equal shared parental responsibility, for the children to live with her, and spend substantial time and communication with the Father, Mr Spring (‘the Father’).[3] The Father responded seeking that the children remain in an equal time arrangement.[4] There are also property proceedings on foot but these Reasons deal with parenting only.
[3] Initiating Application of Ms Spring, 30 August 2022 [3].
[4] Response to Initiating Application of Mr Spring, 1 December 2022, 2.
By the time of the trial, the parties agreed to several matters including:
·Equal time in all school holidays;
·Changeovers at B Park;
·Use of our Family Wizard App;
·Phone / video calls to the other parent 2 nights when away (Wednesday and Friday); and
·Special occasion time.[5]
[5] Exhibit J1 Statement of matters agreed. Exhibit J2 Minute of order reflecting the terms of J1 which was formatted into a word document and provided to the Court by Mr Murray.
The remaining dispute was the nature of the Father’s time with the children during school terms until the end of 2026 — by which time, it was agreed, an equal time arrangement would be in place, whatever the prior arrangements. The Mother sought a 5/9 (four nights in one week and one in the other for the Father) in the intervening period, building to a 6/8 arrangement towards the end of 2025 and 7/7 later in 2026.[6]
[6] This position was put to the Husband by Mr Murray under cross-examination, 8 December 2023.
The Father sought an equal time arrangement — preferably week on/off. If there needed to be a primary carer, he proposed that he take on that role. During the hearing, the Father alternatively proposed that, if his time must reduce to a 5/9 arrangement, it increase to 6/8 at the end of term 1, 2024, and back to equal time by the end of 2024.
The hearing commenced on 7 December 2023, concluding the next day. The property proceedings adjourned for further mention to March 2024, prior to which the parties will attend mediation.
Facts and Chronology
The Mother asserted that the parties commenced living together in 2009.[7] The Father’s position was that the parties commenced cohabitation in 2004.[8] The parties married in 2015.
[7] Mother’s Affidavit (n 1) [3].
[8] Summary of Argument of Mr Spring, 05 December 2023, 2.
In 2017, X was born. The Mother claimed that X is an introverted child who has displayed concerning behaviours, including toileting regression, emotional dysregulation, and fatigue.[9] X has been diagnosed with mildly delayed motor skills and medical conditions. The Mother believes that the Father does not accept the diagnosis,[10] whilst the Father said that X’s issues are not so severe as to result in time with him needing to reduce.[11]
[9] Mother’s Affidavit (n 1) [22].
[10] Ibid [24].
[11] Affidavit of Mr Spring, 5 December 2023 [7] (‘Father’s Affidavit’).
In 2019, Y was born. The Mother said that he is a more extroverted child than X but can show emotional distress and anxiety.[12]
[12] Mother’s Affidavit (n 1) [28].
The parties separated on 3 December 2021.[13]
[13] Ibid [3].
The Mother stated that, prior to separation, she was always the primary carer and responsible for the ‘the day-to-day monitoring of the children's health and wellbeing and the parent responsible for the facilitation of their development’.[14]
[14] Ibid [11].
Since 25 March 2022, the children have lived between the parents’ homes on an equal time basis. Originally, there was a 4/3/3/4 arrangement, and since 17 February 2023 the time has been week about.[15] The Father maintains the children’s relationship with the maternal grandparents — from whom the Mother is estranged.[16] The children also spend regular time with their paternal grandmother.[17]
[15] Ibid [4].
[16] Father’s Affidavit (n 10) [23].
[17] Ibid [24].
The Mother currently resides in Town F in the former matrimonial home with her partner Mr G. The Father resides in Town H with his partner Ms J.[18]
[18] Addendum Report (n 2) [2]-[3].
Evidence
The Mother relied upon:
·Her affidavit, filed 5 December 2023;
·Her initiating application, filed 30 August 2022;
·Her summary of argument, filed 5 December 2023;
·Child Impact Report, dated 10 May 2023; and
·Child Impact Report - Addendum, dated 1 November 2023.
The Father relied upon:
·His affidavit, filed 5 December 2023;
·His Response to the initiating application, filed 1 December 2022;
·His summary of argument, filed 5 December 2023;
·Child Impact Report, dated 10 May 2023; and
·Child Impact Report - Addendum, dated 1 November 2023.
Both parties gave evidence and were cross-examined. Each answered questions put to them directly, presenting as intelligent, hardworking, and dedicated parents who have much to offer their children. One hopes that once their litigation ends, both parties will work to create a conflict free environment for their children, enabling them to thrive and reach their potential.
The Court Child Expert, Ms E, gave her evidence on 7 December 2023 and 8 December 2023 via Microsoft Teams.
In the Child Impact Report of 10 May 2023, her recommendations were:
24.At their ages and in the context of their parents’ conflict and differing parenting styles the children would benefit most from an arrangement where they experience the stability and security of residing primarily with one parent and the opportunity for meaningful connection and experiences of caregiving through significant and substantive time with the other parent. Such an arrangement would assist in securing the children’s emotional and developmental well-being during this more vulnerable stage of their lives. A progression back to an equal time could then take place once the children are more developmentally robust to navigate such an arrangement, such as when [Y] is seven. The children have had a difficult time since their parent’s separation less than 18 months ago, and the parents are encouraged to consider that [X] and [Y] would benefit from parenting arrangements that reflect their developmental needs, rather than the desires of the adults around them.
In the Child Impact Addendum Report of 1 November 2023, her further recommendations were:
34. It is recommended that if the Court accepts [Ms Spring]’s account of her experiences during the relationship and with the children, and as such a reduction is warranted, [X] and [Y] should reside in a five-nine arrangement with [Ms Spring] as the primary caregiver.
35. It is recommended that if the Court gives weight to [Mr Spring]’s view that the current time arrangements are functional, that [X] and [Y] remain in a week about arrangement.
36. It is recommended that if the Court considered that the time arrangements are not aligned with the children’s needs that a restructure to a 2/2/5/5 arrangement be considered.
Ms E gave oral evidence which was measured and deeply considered. Under cross‑examination, she thoughtfully analysed new information put to her and contemplated whether there should be any change to her recommendations. Ultimately, she remained of the view that the children should live primarily with the Mother, nine nights per fortnight, before moving back to a shared time regime over approximately two and a half years with a 6/8 arrangement starting in late 2025. Ms E was an impressive witness and I give her evidence significant weight.
Standard of Proof
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
Dixon J, as he then was, also remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
I must ground my assessment of the children’s best interests in facts, of which I am persuaded, on the balance of probabilities.
Parenting orders: the law
This Court must craft and consider the terms of a parenting order with regard to the children’s best interests as a paramount consideration.[19] I am not bound by the terms proposed by the parties and — subject to the pathway set out in the Family Law Act 1975 (Cth) (“the Act”) Part VII, and particularly ss 61DA and 61DAB — may create parenting orders as I think are proper in the circumstances.[20] What, however, guides the assessment of the children’s best interests? How, once the best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[19] Family Law Act 1975 (Cth) s 60CA ‘(FLA’).
[20] Ibid s 65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to the children’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce children’s human rights.[21] Part VII of the Act, to give effect to a child or children’s best interests, carves a legislative pathway. The pathway has several substantive stepping-stones which may be legitimately and properly followed in various forms.[22] I will follow the path set out in MRR & GR (2010) 240 CLR 461, which remains authoritative.[23]
[21] Ibid s 60B(1), (2), (4), noting the expression of responsibility at sub-s (1), the expression of the child or children’s rights at sub-s (2), and the additional object at sub-s (4) to give effect to the Convention on the Rights of the Child.
[22] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’ (‘Withers & Russell’).
[23] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ) (‘MRR & GR’).
Children’s best interests: the s 60CC factors
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[24]
[24] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully states this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[25]
[25] Godfrey & Sanders [2007] FamCA 102, [36].
Unfortunately, in this case, the parents’ relationship with each other has broken down, and although they are able to communicate effectively via messaging through the OurFamilyWizard App, they do not talk to each other beyond this. One hopes that overtime, the parents will find a way to relinquish the pain of their separation to allow the children to witness the best of their parents. The Court Child Expert notes that:
33. Ultimately the effects of this parental dispute and the boys disjointed experiences in their early years are unlikely to be fully evident until the boys are older, and they will need strong connected relationships with both parents to assist them through any challenges arise. Such relationships will be built through quality time with each parent, rather than the quantity of time spend in each parent’s care. It is unlikely that a reduction in time with either parent over the next two to three years will undermine the boy’s development of such an arrangement unless this is inappropriately and negatively presented to them.
Notwithstanding the poor personal communication, it is clear and obvious that the children have a meaningful relationship with both parents and are benefited by those relationships. Both parents present as loving, warm, and deeply connected with their children. They have differing views as to what arrangements will best meet the children’s needs, each possessing different strengths and approaches to parenting, but overall they parent well — save for their inability to directly communicate with one another and demonstrate to the children a level of parenting alliance.
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
Neither party alleged that the other will place the children at risk while in their care, with the focus on the quality of care.[26] The Mother stated that she is still affected by some of the Father’s behaviour occurring at or around the time of separation. The Father admitted to the Court Child Expert that some of his behaviour was inappropriate. This behaviour still impacts the Mother and is, in part, a reason why she is unable to even speak with the Father at the current time. As opined by Ms E, this level of dysfunction needs to be remedied:
18.The type of relationship issues and patterns of behaviour described by both parents appear to indicate relationship dysfunction. It appears to an extent that this was reinforced and normalised for [Mr Spring], who reports that their life was “set up” in the way that their own childhoods were. [Mr Spring] described feeling unfilled in the way she had choose to live, disrespected and unable to continue to function in the lead up to the end of the marriage. It does appear [Mr Spring]’s behaviour post separation as described by [Ms Spring] would be suggestive of abuse and controlling behaviour. [Mr Spring]’s decision to stay within the matrimonial home, his alignment with the maternal grandparents, his decision to record [Ms Spring] and gathering information about her professionally could all be seen as gas lighting and manipulative behaviours designed to undermine [Ms Spring]. However, it also appears that [Mr Spring] was uncertain how to respond to the situation and at times acted in ways he was advised to. While the behaviours alleged by each parent in relation to attempting to control each other and the situation have currently subsided, it appears possible that this is solely due to the Court’s involvement and may again arise into the future. It will be important that future parenting orders mitigate against this risk.[27]
[26] Child Impact Report of Ms E, 1 June 2023 [20] (‘CIR’).
[27] Ibid [18].
Notwithstanding this, the parties do communicate with each other in relation to parenting issues very effectively, via the OurFamilyWizard App. The Mother tendered[28] a series of messages between the parties that demonstrated a sophisticated level of child focused communication. The Court Child Expert was similarly impressed.[29] An example of an exchange between the parties in November and December 2023 is extracted here:
[28] Exhibit M1.
[29] Cross-examination of the Court Child Expert on 7 and 8 December 2023.
On 05/12/2023, [Ms Spring] wrote:
To: [Mr Spring] (First Viewed: 05/12/2023)
Subject: Handover 04/12/23
Hi [Mr Spring],
Re: Handover for [X] and [Y] 04/12/23 (following 7 nights with me at [K Street, Suburb L]),
Health and wellbeing:
[Y] became snotty and a little feverish Wednesday evening. Needed some nurofen Thurs and Fri, better over the weekend, still a tad snotty but no temp or complaints so went off to school today. [X] having lots of trouble with faecal incontinence, had an accident between one and four occasions per day, mostly just the once. Poor little man had a big accident at the party. I've been taking wipes and a change of clothes everywhere. He is very embarrased understandably and only wants my assistance to clean him up.
[X] went to the dentist and [Mr M] reported the following:
avoid water cordial at all costs and only have milo before teeth brushing
avoid excess lolly drinks, lollies and sweet biscuits
- he has an impacted molar
- very likely to need braces, will readdress this at 9 or 10 years of age, maybe sooner
- two front teeth almost out, needs help to brush them carefully.
Two nights with the boys in my bed, one night each. Eating well.
Behavioural: A little less swearing from [Y] this week which was nice. Both boys getting tired towards the end of the year. Very excited about the elves and Christmas/Santa coming. Great playing with all of their [N] cousins both Saturday and Sunday. [X] upset during [games] after he lost yet another game!!
School:
Exciting day for [X] tomorrow. [Ms O] will likely have been in touch to inform you he needs to wear his full formal summer uniform.
Extracurricular:
No [sports] for [Y].
Great play therapy sessions.
[Mr P] very firm with them at [sports] and basically disappointed that they are mucking around a lot. He was great with them.
I am still hoping you might find [X]'s newly made [toy]. He thinks he may be under his bed. Please also return his plain clothes shorts from two weeks ago- the Next ones, plus his PE polo, it didn't come back last week- think we got a new size 6 instead which I'm happy to return if we can grab the 8 please.
I'll chat to them Wednesday, I hope they have a lovely week.
Kind regards,
[Ms Spring]
Sent: 27/11/2023
From: [Mr Spring]
To: [Ms Spring] (First Viewed: 27/11/2023)
Subject: Re: Handover 20/11/2023
Boys have had a great week!
Good week at school, [X] loved the [sports] he was knackered most days. Said he fell asleep on the bus one day and was lying on the couch at school when I got there Friday afternoon. He wasn't sick, he still wanted to go and get [a] present then he came home and played in the water for a couple of hours.
[Y] did a great job and [sports], no extra for [X].
Been eating well and sleeping well, woke up once each briefly for the week.
[X] had a skid in his undies one day at school and a small accident yesterday while he was busy.
Good fun on the weekend [playing games] they've have been loving both lately!
Hope they have a nice week, talk wed
I commend the parties on being able to put aside their personal difficulties to address child related matters so effectively. I am satisfied that both parents provide the children with a safe and secure environment in which they can develop optimally and that neither parent poses any risk to their children.
Section 60CC(3)(a): any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity
There is no universal rule for the weight to be afforded to the views of a child. It is ultimately a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte v Bondelmonte (2017) 259 CLR 662:
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.[30]
[30] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 673-674.
The views of the children — X being six (6) years of age and Y being four (4) — can be given little weight in these proceedings, and neither parent sought to argue to the contrary.
That said, the Court Child Expert observed both children to be comfortable in each parent’s care. The children have been impacted by the ongoing dispute, although X’s presentation improved over the two reports of the Child Court Expert:[31]
16. In contrast to [X]’s previous dysregulated presentation during observations with both parents and the attempt at interview, [X] presented as subdued and appeared slightly guarded. During the observations he was able to be drawn into play with his parents and their partners, and on this occasion, he separated from both parents without any distress. Before interview, [X] appeared relatively independent but after this he was noted to be sucking his thumb and cuddling on the couch with [Ms J] suggesting that in response to the stress, he had experienced during interview [X] required comfort. [Y] presented as happy and animated throughout his time in the registry and generally responded to both his parents and their partners in similar ways. Consistent with his age, [Y] reported that he wanted to leave with his dad at the end of the observation and this was well managed by [Ms Spring]. Prior to the boys leaving with [Ms Spring], [X] lay on the floor and appeared to be irritating [Y] to pick a fight, with this appearing more in keeping with his previous dysregulated presentation. Overall, the observations were consistent with the CIR, with it appearing that despite [X]’s demonstrated capacity to transition between his parents, the parenting dispute is having a significant impact on him. [Y]’s presentation was consistent with his previous attendance at the Court.[32]
[31] The Child Impact Report was delivered on 10 May 2023, and the Addendum Report was delivered on 1 November 2023.
[32] Addendum Report (n 2) [16].
I accept that both children are content to spend significant time in each party’s care. The question is, however, whether the existing equal time arrangement is optimal given the children’s stages of development and behavioural issues that have developed since the arrangement was put in place.
Section 60CC(3)(b): the nature of the relationship of the child with each of their parents
Neither party suggested that the children have anything but a deep and loving connection with the other parent, as observed by the Court Child Expert:
[X] and [Y] are delightful children, who have the benefit of two caring attentive parents and access to high quality education, activities, and therapy…[33]
[33] Ibid [10].
The parents’ inability to agree as to the children’s parenting arrangements for the next two years stems from the parents’ differing experiences of the children’s behaviour in their care. The Mother is of the view that the current arrangement creates problems for the children in her home and at school. Consequently, she has engaged the children in play therapy to try and help the children adjust to their post separation lives. The Court Child Expert detailed the Mother’s position:
11.During this assessment, [Ms Spring] outlined a range of areas where she feels that the boys are struggling because of their experiences. In relation to school, [Ms Spring] outlined that [X] is generally thriving within the highly structured environment offered by his class teacher, but that she finds he regularly comes home with a smearing of faeces on his underwear. [Ms Spring] indicated that while [X]’s school reports are positive, he is disruptive in his [language] class, where she believes that he feels insecure about his lack of understanding. [Ms Spring] reported that [X] has made significant progress in P.E where his teacher had previously raised that he was not able to do [certain exercises], reflective of his gross motor delay. [Ms Spring] outlined that at home, recently [X] had a “meltdown” after she raised her voice at him, [Ms Spring] indicated that she apologised and sat with him but that she felt that this was extreme reaction. [Ms Spring] indicated that more recently [X] has been having “meltdowns” at home and bursting into tears, and she believes that this is because he is feeling pressured in the context of the parenting proceedings.
12.In relation to [Y], [Ms Spring] indicated that he still struggles with school drops off sometimes being clingy and crying and at other times withdrawn. [Ms Spring] reported that when [Y] is not receiving her full attention, he will become physical or begin swearing. [Y]’s swearing is said to include him saying “fuck this”, calling [Ms Spring] a “fucking bitch”, calling her and others “fucking idiots” and “fucking arseholes.” This behaviour is not reported to be as significant at [Mr Spring]’s, with [Ms Spring] indicating a belief that the children are more secure to demonstrate dysregulated behaviour in her care, as well as less overstimulated by screen time. [Ms Spring] outlined that she was “mortified” when [Y] recently spoke about a [violent] game that he had played and described what it entails, with her believing that [Y] had accessed this game in [Mr Spring]’s care. [Ms Spring] reported a belief that engagement with video games increases the boy’s anxiety and dysregulated behaviour, which is directed towards her when they return to her care. [Mr Spring] outlined that he does view any of the children’s behaviour as “out of the ordinary” indicating they rarely throw tantrums and hat [Y] only rarely swears or has a “meltdown. [Mr Spring] attributes to his and [Ms J]’s “calm” personalities and environment, with him appearing to imply that the boys do not experience [Ms Spring] or her care as such.
13.The children’s school, [D School] provided information that indicated that both [X] and [Y] present at school similarly across the rotating weeks, with no noticeable differences in their physical and emotional presentations when they come from one parent’s household or the other. The children are reported to have all the physical items they need, to manage well socially and generally be thriving in school. [X]’s teacher notes that [X] is “exceptionally independent,” is meeting the expected academic levels for Prep and has a “solid work ethic.” [Y]’s teacher notes that he is a “competent student” who appears to be developing in an age- appropriate manner, his teacher notes that separating from his parents is challenging for [Y] who can at times cling to whichever parent is present. The school notes that both parents are well engaged with the school and have attended parent -teacher and been involved in speaking with them about any issues that have arisen. The school did note that in relation to the “word of the week” homework, [X] is consistently supported by [Ms Spring], with them noting that this supports [X]’s learning and is not an issue for the school. [Ms Spring]’s reported lack of interest or support for [X] with this homework has been a consistent concern of [Ms Spring]’s across assessments.
14.[Ms Q] outlined that she provides the children with child centred play therapy, which allows the children to express their feelings through play. [Ms Q] outlined that she has met [X] approximately thirteen times and [Y] around eight but that it is generally accepted that twenty sessions need to take place prior to a child being fully engaged in the process. [Ms Q] reported that in the particular therapy provided she does not ask the children direct questions as such she has had limited information from the children. [Ms Q] reported that she has not seen any aggressive or frustrated behaviour by the children but outlined that she may not necessarily see this in the environment she has created. [Ms Q] outlined that she has observed that [X] displays indicators of trauma, including a” freeze response” which she has viewed as related to his experiences of his parents’ separation. [Ms Q] reported that she has generally liaised with [Ms Spring] who she has provided with parenting support and that she is open to doing this with [Mr Spring] if required.[34]
[34] Ibid [11]-[14].
To his credit, under cross-examination, the Father supported the Mother’s involvement of the children in play therapy, accepting the Mother’s expertise (she is an allied health worker) and trusting in her ability to make decisions of this nature for the benefit the children.
The Court Child Expert concluded that the existing shared time arrangement was not an optimal arrangement given her observations and the Mother’s experiences:
17.Optimal conditions for an equal time arrangement are broadly seen to include that parents can co- operate and support children’s relationships with each other across households. Other conditions that are optimal includes that there are no risks to the children in either household and the children are developmentally mature enough to manage such arrangements. In this particular matter, the issue that has been most pronounced over time is the poor co-parenting but to a degree it could be argued that none of these conditions were present when the equal time arrangement was developed.
….
33. Ultimately the effects of this parental dispute and the boys disjointed experiences in their early years are unlikely to be fully evident until the boys are older, and they will need strong connected relationships with both parents to assist them through any challenges arise. Such relationships will be built through quality time with each parent, rather than the quantity of time spend in each parent’s care.[35]
[35] Ibid [17], [33].
Under cross-examination, the Court Child Expert explained that there can be long term negative consequences for children whose caring arrangements are not in line with their stage of development:
Where the kids have attachment issues – developmentally misaligned arrangements – they can act out physically, have difficult friendships, have problems paying attention, lower self-esteem, and a loss of sense of who they are - not seeing a parent along time leads confusion and a feeling of abandonment which leads to trust issues - they might feel that a parent has disappeared and become less trusting that the parents are consistent are going to be there.[36]
[36] Cross-examination of the Court Child Expert, Ms E, at trial.
The Court Child Expert did, however, acknowledge that the children had settled considerably by the time of her addendum report, and seem to have tolerated the time apart from each parent and adapted to the new regime. Notwithstanding this, Ms E remained of the view that the children should optimally live primarily with the Mother over the next two years, and slowly building back to equal time.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child
Neither party suggested that the other is not fully engaged in the children’s lives, although the Mother is somewhat critical of the Father for not being involved in some of the activities and therapy that she has organised for the children.
The Father has no difficulty with the Mother engaging the children in therapy and activities, but is more committed to the time the children spend in his care, which seems to be full of activities that the children enjoy:
15. …While [Y] was able to openly tell the CCE about his mother and father’s home, [X] only joined in when discussing the dogs within each household. [Y] reported that his favourite activities are [sports and games], whilst [X] reported that his favourite activity is to watch television. When asked about playing games, in a general sense of the word, [Y] reported that he plays heaps of video games on his dad’s phone and [X] reported that he gets to play [a game] at his father’s. When asked about mum’s house, [Y] outlined that he likes to chase the dog around the house and reported that his mother was fun whilst smiling. In contrast [X] reported that there are “no fun things” at his mother’s, in what was emotionally presented statement with him then appearing to become further withdrawn. In relation to [Ms Spring]’s care, both boys spoke about going to the shop to get lollies as fun activity they do. They were unable to identify anything they did not like in relation to either parents’ care. Both boys reported that if they had three wishes, they would wish for three more dogs.[37]
[37] Addendum Report (n 2) [15].
It seems that the parents differing focus and style has added to some of the parental mistrust, with the Mother believing that the harder aspects of parenting are left to her:
35.Although I do not believe the children are at risk physically when in [Mr Spring]’s care, I believe that they are at great risk of emotional arrest and long-term psychological limitations as a result of [Mr Spring]’s emotional immaturity and ignorance to their needs.
36.I consider denying [X] and [Y] of the readily available supports in our community and not wanting them 'to be labelled' is a form of emotional and psychological neglect. Although [Mr Spring] will physically assist in having the children at a physical location at a set time, he has never initiated an activity or opportunity directly related to the observations he makes.[38]
[38] Mother’s Affidavit (n 1) [35]-[36].
I accept that the Mother continues to be the parent who is primarily responsible for organising the children’s medical, educational and extra-curricular requirements, and in that sense has continued in her role as their primary carer.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Neither parent complained that the other does not financially support the children. Both the Mother and Father present as attentive parents in regards to the maintenance of the children, demonstrating strong parenting capacity.[39]
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents
[39] Court Child Expert, Ms E, oral evidence on 7 and 8 December.
The Father stated, under cross-examination, that he hopes for the children to remain in an equal time, week on/week off, arrangement. He viewed any change to the arrangement as unnecessary and destabilising. He said that even if the original introduction of the shared time arrangement was premature, the children have adapted to the arrangement and are doing well. Any change, therefore, will likely be to the children’s detriment.
The Mother seeks a change to a 5/9 arrangement, where she is the primary carer. Her aim is to provide stability for the children until they are emotionally mature enough to cope with a shared time arrangement. She is convinced that neither child is equipped to cope with the arrangement at this time, as demonstrated by the meltdowns that have occurred on return from the Father’s care.
The Court Child Expert shares the Mother’s concern:
… Children benefit more from equal time arrangements when they have developed the capacity to cognitively understand the transitions, when they have begun to emotionally regulate and are beginning to experience a level of emotional and physical independence. Children who are not developmentally ready for such an arrangement may become overburdened and become so preoccupied by managing their transitions that they are unable to complete basic developmental tasks. Also indicated within the CIR, they are likely to experience less security and as such be at risk of persistent feelings of insecurity that will undermine their emotional and social development.[40]
[40] Addendum Report (n 2) [20].
The Court Child Expert opined that the children are at a developmentally vulnerable age, particularly given their lives have been impacted by their parents’ conflict. To allow the children to settle back into the primary care of the Mother, until they are developmentally ready for an equal time arrangement, will likely be of benefit to them in the future:
30. …Both times the CCE has met them they boys appear physically small and vulnerable, with them not appearing confident or highly resilient children, rather children who struggle to move between parents and express themselves. Observation of the boys appears to suggest to the CCE that the boys appear to continue to be children who are experiencing a care arrangement misaligned with their needs.
31.It appears possible this misalignment is being addressed with the support of the school and [Ms Q], and that the children will not be substantially affected to such a degree that the time arrangements should be changed. However, [Y] is beginning full time school in 2024 and as such this could be an appropriate opportunity to reconfigure the arrangement to a five – nine with a view to an increase when he has completed his early years of schooling. If this does occur, it appears that [Ms Spring] is eager and well positioned to take on the primary care role.
32.A reconfiguration of the time arrangements may also have the benefit of better aligning the time arrangements to the boys’ developmental needs. A 2/2/5/5-time arrangement provides children with the stability of consistent weeknights with each parent as well as regular time with both parents with no extended separation. However, such an arrangement would also have the effect of increasing the number of changeovers the boys experience, which may increase the level of stress the boys are experiencing. Based on the observations in the CIR, it is considered that it would have been highly likely [X] would not have tolerated increased changeovers, but his more recent presentation, suggests it may be more manageable for him. Ultimately direct changeovers are likely to be stressful for the boys and into the future it is worthwhile the parents considering neutralising these using a third party. If a 2/2/5/5 arrangement is adopted, it may be that the stress the children experience in relation to the parent dispute, which is currently contained, may become more apparent across settings.
33.Ultimately the effects of this parental dispute and the boys disjointed experiences in their early years are unlikely to be fully evident until the boys are older, and they will need strong connected relationships with both parents to assist them through any challenges arise. Such relationships will be built through quality time with each parent, rather than the quantity of time spend in each parent’s care. It is unlikely that a reduction in time with either parent over the next two to three years will undermine the boy’s development of such an arrangement unless this is inappropriately and negatively presented to them.[41]
[41] Ibid [30]-[33].
Ms E was cross-examined at length regarding her opinion as extracted. Ms E was an impressive witness whose evidence was measured and considered as she reflected upon the possibility of there being an adverse reaction to the any change to the existing arrangements. Ultimately, Ms E maintained her position that a move to a five/nine arrangement, building to equal time, is the arrangement that will best meet the children’s long-term interests — a process that could occur over two to three years:
… [Y] is transitioning to prep and that’s quite taxing and he needs to be out of the house 5 days per week all day - learning a lot of rules - so I wouldn’t want it to increase to the end of 2024 – then 6/8 and then a year later or 6 months later go to equal time maybe after his birthday or the end of year – 2025.[42]
[42] Cross-examination of the Court Child Expert, Ms E, on 7 December 2023.
When it was pointed out to Ms E that Y will only be attending school for three days a week in 2024, she slightly changed her position:
[Y] is young - I think full time school is really difficult - a lot of changes and relationships you have to maintain - so I think that it needs to be pushed out to full time school - so look at 18 months - so look at start of term 3 in 2025 and then add the next additional day after the 6th birthday in 2026 - after the 6 nights has consolidated.[43]
[43] Cross-examination of the Court Child Expert, Ms E, on 8 December 2023.
The Mother largely adopted Ms E’s recommendation. In my view, if there is to be a change, then the change to 6/8 would better occur at the commencement of the school year in 2026. This would be less disruptive for the children and acting a little conservatively will ensure that the increased time with the Father is developmentally appropriate. The change to 7/7 would then ideally occur in the second half of the 2026 school year, at the commencement of term 3.
Section 60CC(3)(e): the practical difficulty and expense of the children spending time and communicating with a parent
There is no practical difficulty or expense associated with either parties’ proposal. The parties have agreed that all non-school changeovers will occur at ‘B Park’, Suburb C.
Section 60CC(3)(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
It is evident that the Mother and Father are devoted parents, able to provide for the children’s needs. The Court Child Expert described both as loving and caring parents. The Mother was assessed as having an optimal manner in parenting, with particular praise given to her for enrolling the children in play therapy. Ms E described the Father as loving and being capable of good parenting skills, highlighting his responsiveness and encouragement to the children.
However, in the Child Impact Addendum Report, both parents indicated that they are not co‑parenting in a manner that provides the children with the best experience possible.[44] Both indicated they have difficulties in engaging with each other and have different manners of parenting.[45]
[44] Addendum Report (n 2) [21].
[45] Ibid [21]-[22].
One plank of the Mother’s argument for primary care was that she had always taken on that role, and had continued to do so, even though her time with the children was shared:
11. Prior to separation I was always the children's primary carer and the vast majority of parental responsibility fell to me. I was the parent responsible for the day-to-day monitoring of the children's health and wellbeing and the parent responsible for the facilitation of their development. I was the present, connected parent who offered consistency and predictability.
12.Prior to our separation [Mr Spring] would not productively read the boys a bedtime story, instead opting to read the front and back cover only.
13.Since separation and despite the equal time arrangement I continue to arrange and attend to all appointments for each child, whether medical or other appointments, with [Mr Spring] only attending medical appointments if I strongly encourage him to do so.[46]
[46] Mother’s Affidavit (n 1) [11]-[13].
Later in her affidavit, the Mother gave examples to the activities she has arranged for the children since separation:
27.I provide ongoing support and relevant interventions to assist [X] with his limitations. This includes:
i. Liaising with his [sports] coach to ensure his abilities are in line with lesson structures to build his self-confidence and improve his gross motor skills,
ii. Regular facilitation of participation in his physiotherapy prescribed home exercise program; and
iii. Participation in his classroom 'word of the week' sharing opportunities to provide the necessary scaffolding for intrapersonal and interpersonal growth and development. [Mr Spring] has never assisted [X] with these sharing opportunities, instead reporting he lets him 'be a kid'.
….
36.I consider denying [X] and [Y] of the readily available supports in our community and not wanting them 'to be labelled' is a form of emotional and psychological neglect. Although [Mr Spring] will physically assist in having the children at a physical location at a set time, he has never initiated an activity or opportunity directly related to the observations he makes.
37.I have initiated the following as a result of my observations of the children's needs:
i. Play therapy with [Ms Q] fortnightly for both boys,
ii. Assessment of [X]’s gross motor delays with a paediatric physiotherapist,
iii. [sports] lessons weekly for both boys,
iv. [music] lessons weekly and classroom sharing fortnightly for [X];
v. The [R Program] for [X] to address his bed wetting;
vi. The 123 Magic program to address [Y]’s emotional !ability and aggression;
vii. The Circle of Security program at [S Centre] to further understand the children's needs;
viii. 1:1 sessions with play therapist [Ms Q], psychologist [Ms T], [U Company] counsellor [Ms V], and private counsellor [Ms W] for coparenting guidance and addressing family violence impacts.
ix. Liaison with GP regarding [X]'s toileting regression and vomiting, with referral to a paediatrician;
x. Purchase and implementation of the Our Family Wizard App for improved coparenting and communication. Plus the weekly handover via this same communication platform.[47]
[47] Ibid [27], [36]-[37].
The Court Child Expert agreed, under cross-examination, that the Mother’s role in organising the children’s extra-curricular lives placed her in a better position to be the children’s primary carer. Ms E set out her reasoning in her addendum report:
28.As parents, [Ms Spring] could be seen to have an advantage based on her training as an Occupational Therapist, with her greater the knowledge of how skills are acquired and developed. [Ms Spring] also has the advantage of having a greater capacity to control her work arrangements, as well as the history of being primary carer and residing where the children have primarily resided in the former matrimonial home. However, as implied by [Mr Spring], [Ms Spring] is highly attentive to the children, and this could have the unintended effect of being experienced as overbearing by them.
29.As a male, [Mr Spring] could be seen to have a greater affinity to the boy’s interests and be better able to provide them with role modelling. [Mr Spring] could also be seen to have the advantages of a partner who is more easily available to assist him with care of the children and he has sought independent psychological support in developing his parenting skills. [Mr Spring]’s past desire to maintain the marriage, could be seen to have shown what could be seen as a greater commitment to providing the children with consistent care by both parents. However, it appears possible as suggested by [Ms Spring] that [Mr Spring] is deliberately obfuscating how much he relies on others to care for the children, which could have the effect of exacerbating the impact of any underlying insecurities the children are developing.[48]
[48] Addendum Report (n 2) [28]-[29].
As found, I am satisfied, post separation, that the Mother has continued in her role as the parent primarily responsible for the children’s medical, educational and extra-curricular requirements. This is not to criticise the Father, but rather reflects the way the parties have undertaken their respective parenting roles. The Father accepted, under cross-examination, that he is happy to defer to the Mother’s expertise and initiative regarding the children’s medical matters — demonstrating a high level of trust in her.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child and each of the child’s parents
This factor is not relevant in this matter.
Section 60CC(3)(h)): If the child is Aboriginal or Torres Strait Islander
This factor is not relevant in this matter.
Section 60CC(3)(i): the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
Both parent’s demonstrate high level parenting skills. The Mother was the children’s primary carer during the relationship and largely continued that role post separation.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
I have already dealt with the issue of family violence. The children are not at risk of harm in either party’s care.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
There are no past nor existing family violence orders.
Section 60CC(3)(l): whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child
It is almost never in a child’s best interest to be subjected to their parents’ litigation. Unfortunately for Y and X, they have been exposed to their parents’ litigation for one and a half years. That said, the parties are to be commended in reaching significant agreement in relation to the children’s long term care arrangements and communicating effectively about child related matters. This dispute focuses on the children’s arrangements during school terms for approximately the next two and a half years. The orders I will make will aim to diminish parental conflict. Unfortunately, the parties are still engaged in property proceedings, and as such the children’s exposure to their parents’ litigation will continue. I encourage them both to do all things to settle that dispute. The children have been impacted by the parental conflict and it is incumbent upon both parents to now remove that source of pain from the children’s lives. The parties will attend a property mediation and one hopes that a resolution to all remaining disputes can be found at that event.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant
There are no other relevant matters.
Parental responsibility
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.[49] A parent does not have rights over their children — they have responsibilities to love and nurture their children and serve their children’s best interests. Upon separation, parents are not, by virtue of their changed relationship with one another, absolved from their responsibilities to maintain and care for their children.[50]
[49] FLA (n 18) s 61B.
[50] Ibid s 61C.
Parental responsibility can, however, be apportioned to suit a post-separation life.[51] It is important that, wherever possible, separated parents cooperate to promote their child or children’s best interests, as well as to help each other with the responsibilities and challenges of parenting. Where equal shared parental responsibility is ordered, the Act requires major long-term decisions be jointly made. I note, however, a possible anomaly within s 65DAC — namely, subsections (2) and (3)(b). The need to come to joint decisions is, from the language of the provision, non-negotiable. Yet, the section also requires consultation in relation to the issue and the ‘genuine effort’ of all parties involved to come to a joint decision on that issue. It is entirely possible that all parties involved may make a ‘genuine effort’ to make a joint decision but, nevertheless, fail to do so. They may simultaneously comply with sub-section (3) and breach sub-section (2) — a problem for which s 65DAC appears to offer no resolution.
Presumption of equal shared parental responsibility
[51] Goode & Goode [2006] FamCA 1346, [39].
The presumption — legal principles and operation
The Act requires this Court to presume that it is in the children’s best interests for their parents to be equally responsible for major decisions affecting their long-term care and welfare. Section 61DA of the Act sets out the applicability of that presumption (emphasis added):
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[52] Section 61DA makes clear, however, that this outcome may not always be appropriate.
[52] Koyroyshs & Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2009] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
Sections 61DA(2) and 61DA(4) provide for two ways by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand.
Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption notwithstanding that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2), at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances there is no discretionary power by which the presumption may be revived.[53]
[53] Ibid [85].
The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child or children’s best interests. This is not to say that the presumption, once in place, is set in stone.
Section 61DA(4) accounts for instances in which, although the presumption applies from the outset of the enquiry, an order for equal shared parental responsibility may nevertheless not serve the child or children’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[54] Subsection (4) provides for the presumption to be rebutted — namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine, on the balance of probabilities, that it would not be in the child or children’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2). A court must, therefore, reach ‘a level of satisfaction on the evidence … that it would not be in the interests of the child for [the presumption] to apply’ and must give ‘explicit and cogent reasons why the presumption should be rebutted’.[55]
[54] Boyce & Boyce [2015] FamCAFC 60, [21]-[22] (Bryant CJ, Ryan and Kent JJ).
[55] Dundas & Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers & Russell (n 21), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.
If the presumption is rebutted, it does not mean that I no longer have jurisdiction to make an order for equal shared parental responsibility as agreed by all parties. Warnick J in Robertson & Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) by reference to the words therein:
41.[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[56]
[56] Robertson & Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
This Court remains bound under s 60CA to consider the children’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in the children’s best interests for there to be an order for equal shared parental responsibility, then I may make that determination and craft an order accordingly.
In this case the parties agreed to an order for equal shared parental responsibility, and I have no reason to doubt that such an order is in the children’s best interest. Notwithstanding the poor level of the parties’ personal communication, both parents communicate well about child related matters. The Father conceded that the Mother has the qualifications, experience and expertise to make decisions regarding the children’s need for ongoing therapy and supports the decisions she has and will make. He also engages with a psychologist to assist him to improve his communication with the Mother.[57]
[57] Father’s Affidavit (n 10) [11].
I have little doubt that both parents can put aside any personal animosity for the benefit of their children when important decisions must be made. I will make the order for equal shared parental responsibility as set out in their draft minute.[58]
[58] Exhibit J2.
Equal time or substantial and significant time?
Where there is an order for equal shared parental responsibility, I must consider whether there should be an order for an equal time arrangement or, alternatively, a substantial and significant time arrangement. As explained by the High Court in MRR & GR, either arrangement must be reasonably practicable and, in the children’s best interests, if it is to be ordered.[59] If ordering equal time is in the children’s best interests and otherwise reasonably practicable then I must consider making an order to provide him with equal time arrangements. If I do not order equal time, I must consider whether the children should spend substantial and significant time with one of their parents. I will undertake this assessment, again, with reference to the children’s best interests and whether spending substantial and significant time with both parents is reasonably practicable.[60]
[59] MRR & GR (n 22) [37]; FLA (n 18) s 65DAA.
[60] FLA (n 18) ss 65DAA(2), 65DAA(5).
When considering the question of reasonable practicability, I am required to have regard to:
(a)how far apart the parents live from each other; and
(b)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; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.[61]
[61] Ibid s 65DAA(5).
Consideration — equal or substantial and significant time?
At trial, the Court Child Expert stated that the children would benefit from a primary carer to provide greater stability, which is particularly important where children suffer from attachment and behavioural issues. The Court Child Expert recommended, both in her written reports and oral account, that if there is a reduction of time with the Father and a 5/9 arrangement, the Mother is be best suited as the primary carer.[62] This would ensure that the children experienced a parenting arrangement that was aligned with their stage of development — particularly given the children’s exposure to parental conflict. The Court Child Expert was, however, of the opinion that a build back to an equal time arrangement over approximately two and a half years would be the optimal outcome for the children.
[62] Cross-examination of the Court Child Expert, Ms E, on 7 and 8 December 2023; Addendum Report (n 2) [34].
The parties currently have little ability to communicate directly with one another. Notwithstanding this, they have operated within a shared time regime for nearly two years. Initially, the arrangement had a complicated 4/3/3/4 structure, requiring several changeovers. By February 2023, the arrangement changed to week on/week off. It seems clear, however, that the children are impacted by the parental conflict — no doubt highlighted by the fact that their parents do not speak to each other at changeover. It is little wonder that the children have a ‘melt down’ from time to time, facing such unstated friction.
There is a real question as to whether the current shared time arrangement is reasonably practicable given the current level of disfunction in the parties’ relationship. As the Court Child Expert opines:
Optimal conditions for an equal time arrangement are broadly seen to include that parents can co-operate and support children’s relationships with each other across households.[63]
[63] Addendum Report (n 2) [17].
Both parents must work on improving their ability to communicate with each other. Allowing time for the tension between the parents to settle will ultimately benefit the children. Currently, the parties’ poor relationship does not lend itself to a fully successful equal time arrangement and supports the Court Child Expert’s opinion that the children’s circumstances would be optimised with a period of time in the Mother’s primary care, building back to an equal time arrangement when the children are developmentally ready to cope with such an arrangement.
It follows that a substantial and significant arrangement — starting with a 5/9 regime — with the children to live primarily with the Mother and building back to an equal time arrangement, is both in their best interests and reasonably practicable. I agree with the Court Child Expert that a change to such an arrangement will allow the children to settle into a regime that is developmentally appropriate. I also accept that the Mother has been effectively carrying on the role as the children’s primary carer within a shared time regime. It is likely that the children will benefit if she has more time with them to undertake those tasks.
I am not, however, attracted by the Mother’s proposal that the Father’s time be divided over two weeks (Friday until Tuesday in one week and Thursday until Friday in the other). That would result in a significant change for the children and be ultimately disruptive. The children have become accustomed to block time, with liberal video communication for the non-caring parent (which is agreed), and I see no reason for that change to be brought into the parenting arrangements.
The Father’s block time should commence on Wednesday after school and conclude on the following Monday. Time can then naturally increase a night at a time (Tuesday and then Monday) over approximately two and a half years. I note that the Court Child Expert recommends that the increase to Tuesday 3.00 pm should start from term 3, 2025. I am of the view, however, that changing to a 6/8 arrangement should not commence until the start of the 2026 school year. This more conservative approach will be less disruptive for the children and help will maintain stability and certainty. It also ensures that the increased time is developmentally appropriate.
The resumption of equal time (from Monday 3.00 pm) should commence six months or so later after Y’s birthday— which should sensibly be from the commencement of term 3, 2026.[64] This results in a natural and logical building back to an equal time regime, and I will so order.
[64] Term 3 commences in or about July.
Conclusion
I have ultimately concluded that the children’s best interests are met by them spending their school term time primarily in the Mother’s care, with the Father having five nights per fortnight with them, increasing to six nights from term 1, 2026 and then equal time from term 3, 2026. This will allow the children to settle into a time regime that better meets their stages of development. Orders will otherwise be made as per the joint minute.
The parents must now do all they can to improve their level of communication, trust, and alignment. If they truly want their children to meet their immense potential, they will commit themselves to this goal.
I certify that the preceding ninety-four (94) numbered paragraph is a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 19 January 2024
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