STANLEY & GARNER

[2015] FCCA 2459

FEDERAL CIRCUIT COURT OF AUSTRALIA

STANLEY & GARNER [2015] FCCA 2459

Catchwords:
FAMILY LAW – Parenting dispute – father seeking variation to 2008 orders to provide equal time – mother opposing alteration and taking Rice v Asplund point – children wanting more time with father – family report writer recommending equal time – family report writer not required for cross-examination – orders made as recommended by family report.

Legislation:

Family Law Act 1975, s.60CC

Rice v Asplund (1979) FLC 90-725
Goode v Goode [2006] FamCA 1346
SPS v PLS [2008] FamCAFC 16

Applicant: MR STANLEY

Respondent: MS GARNER

File Number: MLC 6879 of 2014

Judgment of: Judge Burchardt

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Melbourne

Delivered on: 16 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Addison

Solicitors for the Applicant: Maddison & Associates

The Respondent: In Person

ORDERS

1. The parents have equal shared parental responsibility for the children X and Y (“the children”).

2. Each parent shall have the children on each alternate week from conclusion of school on Friday until the commencement of school on Friday morning of the following week.

3. Commencing from 2 October 2015 the children will be with the father on each alternate week from conclusion of school on Friday until the commencement of school Friday morning of the following week.

4. Any medical, cosmetic or any other treatments regarding the children’s health or well-being will be a joint decision between both parties. In the event that an agreement cannot be reached then a dispute resolution should be invoked whereby both parties will attempt to resolve any differences in conciliation.

5. Communication will be between the hours of 3:30pm and 8:00pm on each evening when not in the care of the other parent. This time can be varied if the other parent is away overseas to reflect the time difference between countries. The parties will text each other prior to calling.

6. During times of communication by either parent, the parent shall not ask the children questions about the other parent’s personal life.

7. Children’s birthdays will be shared equally whereby the parent in whose care the children are on the day will have the children from 6:30pm until bed time and the other parent from conclusion of school until 6:30pm. It will be the responsibility of the parent picking up the children from school to return the children by 6:30pm. Should the children’s birthday fall on a non-school day then the parent whose care the children are in on the day will provide the children to the other parent from 9:00am until 4:00pm. Children’s birthday hand over non-school day, it will be the responsibility of the non-caring parent to transport the children to the home of the other parent at the required time (i.e if it’s not the father’s night then the father shall pick up the children from the mother’s and return the children to the mother’s by the required time. The same shall apply to the mother).

8. Family functions: if a family function arises then the children will be allowed to attend with no time restrictions. The parent taking the children to the function shall nominate the times required. Should wither party have a family function on the same day then the children will be allowed to attend both with equal time shared.

9. Family functions or required events- the parent requesting to have the children for the said event will be responsible to pick up and drop off the children for each event.

10. School information sessions- Both parents are entitled to attend school information sessions.

11. Parent Teacher interviews- The said parent in whose care the children are in at the time of the interview will advise the other parent of times attending via e-mail no later than 24 hours after the parent teacher interview is open for bookings. Each parent will allow the other parent the children for the required times of the interview.

12. Each parent will be responsible for arranging own interviews, co-ordinating with the school to provide duplicate information sheets and reports.

13. Both parents approval is required for children to attend school events and it is the responsibilities of each parent to co-ordinate this within 2 working days of the notice being given by the school.

14. Childcare coverage when children are sick. If children are too sick to attend school, the parent that is caring for the children at the time will be responsible for taking the child/children to the doctor, if necessary, and provide care for the child/children until the child/children are scheduled to be in the care of the other parent. If the child becomes sick or hurt and must leave school, the parent in whose care the child is in that night will pick the child up and provide care.

15. Each parent shall endeavour to maximise time with the children during the care periods. However, should it be necessary the parent shall be responsible for arranging care for the children with immediate family or close family friends if the parent cannot care for the children during his or her times. (Immediate family- being grandparents/brother/sister etc.).

16. Each parent shall agree to make sure the children are ready to go at the agreed upon times for pick up and return. Each parent will be on time when picking up and returning children to the other parent with a grace period of 15 minutes before and after these times. Should a parent be unavoidably late they shall text the other parent to advise.

17. Both parents will be respectful of the other parent’s time with the children. Both parents will agree to make every effort not to schedule appointments for the children during the other parent’s scheduled times.

18. Public holidays excluding Easter and Christmas will be shared equally between both parties. Each holiday will alternate on an annual basis.

19. Easter will be shared as one year on one off. Effective from 2015 the mother will have the children for the full Easter period being Good Friday to Easter Monday. Effective from 2016 the father has the children for the full Easter period being Good Friday to Easter Monday. The cycle is then rotated each year then on after.

20. School Holidays-

    (a)For the term holidays the children will commence school holidays with each parent from the Monday after the weekend spent with the parent whose weekend the children were with. The children will then be transferred to the other parent on the Friday of that week by no later than 6:00pm.

    (b)For the long summer holiday the children will spend two weeks turnabout with each parent.

21. School holiday or public holiday handover will be the responsibility of the parent that the children are in care with to transport the children to the home of the other parent.

22. Christmas Eve shall be shared as one year off one year on. Effective from December 2015 the father shall have the children for Christmas Eve. The cycle will alternate each year.

23. Christmas Day- Following from Christmas Eve the children will spend until 4:00pm Christmas Day with the parent from Christmas Eve. The other parent shall then have the children from 4:00pm and the children shall be returned to the other parent’s home the next morning.

24. Should the opportunity arise with either parent for the children to travel overseas, either parent will not withhold their consent to such travel. Should the opportunity arise over the school holidays the parents agree to forgo their shared arrangement of the holidays to the other.  This can be recouped by the other parent immediately following the return from the trip. Should the travel fall within school term then the other parent will agree to a maximum time out of school of two weeks.

25. Until further order, both parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children or any of them, and from permitting any other person so to do. 

26. The parties will be mindful of the importance of the children spending time with their cousins, the children of the father’s brother.

27. Pursuant to s.13C of the Family Law Act 1975, the parties attend a Post-Separation Parenting course and that:

    (a)The course to occur at Relationships Australia and

    (b)The parties attend at the organization at such times as requested by the organization.

28. Y should be enrolled in and attend counselling to assist with her fears and sleeping difficulties.

29. The decision to take out private health cover is to be optional for both of the parents, with the party electing to take out such cover to pay for the same.

30. The school fees for the children are to be paid equally by the parties.

31. Fees for the extracurricular activities of the children are to be paid equally by the parties.

IT IS NOTED that publication of this judgment under the pseudonym Stanley & Garner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6879 of 2014

MR STANLEY

Applicant

And

MS GARNER

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about two children, X, born (omitted) 2001, and Y, born (omitted) 2003.

2. By the conclusion of the trial, the matters in dispute had considerably diminished.  The main dispute is whether the children should live on an equal time basis with each parent as the father proposes, or a nine/five arrangement as the mother proposes.  There are additional relatively minor disputes about medical expenses for the children, cosmetic expenses for the children, and extracurricular activities, and finally, a dispute, in effect, about the exercise of parental responsibility in relation to the children’s health.

3. For the reasons that follow, I am going to order that the children live on an equal time basis with each parent, that the mother be responsible for health insurance should she seek to maintain it, and that each parent pays for the children’s activities while they are in their care.  Likewise, I am going to order that the parents consult in relation to any significant issues about the children’s health, although in the event of disagreement, the parent in whose care they presently are will have the power to make the relevant choices.

The parties’ affidavits

1. Each side has filed one affidavit only.  The father’s affidavit, filed 6 August 2014, is somewhat difficult to paraphrase.  Essentially, he asserts that the orders made on 9 September 2008 should now be reviewed because the children are much older than they were then.  He complains about an alleged failure on the part of the mother to be cooperative and flexible in relation to parenting orders.  He complains that cosmetic treatments decisions have been made unilaterally by the mother and asserts, (paragraph 12), that he pays for half the cost of medical expenses, extra activities, school fees, dancing lessons and the like.  Essentially, he seeks that the extant orders be made more workable, in any event.

2. The affidavit annexes very many pages of text messages and emails passing between the parties, which go to show a very poor communication style between them and, in my view, a somewhat overbearing and at times insulting tone on the part of the father.

3. The mother’s affidavit, (and she is self-represented), responds in detail, although the affidavit is relatively short.  She asserts that there has been no significant change in circumstances such as to justify revisiting the 2008 orders.  She complains that the father’s time with the children has often been rendered difficult by his travelling for work.  She complains that she has been paying for private health insurance since separation and denies that the father has contributed to school fees and uniforms and the like.

4. She complains of abuse via text and email from the father, and, at least in part, I think that criticism is made out.

5. It should be noted that neither of the two affidavits condescends to the sort of details one might ordinarily expect as to the parties’ dates of birth and the nature of the relationship.  From the father’s Initiating Application, it seems that he was born on (omitted) 1970.  It seems to be common cause that the mother was born on (omitted) 1970.  The Initiating Application likewise reveals that the parties married on (omitted) 1996 and that they separated on 1 February 2006.  This latter date is not certain, as I note that Dr M, the family reporter, asserted separation as occurring in 2007.

The family report of Dr M

1. Dr M’s report, dated 17 February 2015, is of significance.  Neither party sought to cross-examine Dr M, so her opinions stand unchallenged.

2. Having set out background (including the orders in 2008 and their effect) and the applications of the parties and the issues in dispute, (primarily the amount of time the children spend with the father), Dr M recorded her interviews with the parents at paragraphs 8 (page 5) to 25 (page 10).

3. It is largely sufficient for these purposes to note that Dr M formed a good impression of both parents.  She noted that the father lives with his 31-year-old partner, Ms V, with whom he asserted the children had a good relationship.  They had discussed the role that the partner would play with the children and it was agreed she would play a role as a friend to the children.  The father asserted that communication between the parties had deteriorated, and he asserted that the children were confident (X) and happy and easy-going (Y).

4. As indicated, Dr M found the mother, likewise, an essentially pleasant person.  I note that the mother also felt that they were able to communicate quite effectively about parenting decisions until two years ago.  The mother raised an issue about the children keeping secrets from her about things that happened in the father’s house and stated that the parties could benefit from counselling to assist them with a more effective co-parenting arrangement.  At paragraph 23, Dr M noted that the mother felt “that they would benefit from addressing the issue of Y’a (sic) anxiety about sleeping arrangements”.

5. The mother had some measure of concern about the involvement of Ms V as a step-parent.  She supported the children spending more time with the father but maintained some concerns about his capacity to manage such a regime due to his travel commitments at work.

6. The record of interview with the children proceeds from paragraph 26 (page 10) to paragraph 49 (page 14).

7. X was assessed as polite and engaging, and confident in expressing her views.  At paragraph 28, Dr M recorded:

   “28.  X stated that the living arrangement with her father had been fine until now and commented that she had no input into that decision.  She stated that as she was older she wanted to spend more time with her father.  She stated that the current arrangement was more difficult, particularly with the practical logistics such as taking things between the homes.”

8. I note that X did feel some awkwardness that her father had encouraged her to withhold information from the mother about his forthcoming wedding.

9. X would prefer that parent-teacher interviews were held with both parents at once to avoid having two sessions and noted some difficulties about Y returning clothing from the father’s home.  She described a positive relationship with Ms V, although she had some discomfort with Ms V’s involvement in parenting issues.

10. Y was assessed as a boisterous and dynamic young person.  She has a large circle of friends and enjoyed living with her mother.  Y discussed the difficulties of living between two households, but it seems to me, on reading Dr M’s report, that she copes well. 

11. Y identified her sleeping difficulties.  Not being able to sleep in her own bed is an issue she would like assistance with from both parents.  She could not identify the source of the issues, but she moved rooms due to the fear someone was behind her and because she would not get up in the morning.  She felt more in control at her mother’s house, because it was cosier, and was very receptive to having counselling to assist her manage this difficulty.  She expressly stated she would enjoy spending a week with each parent but would struggle with a three-week block of time spent with each parent during the school holidays.

12. Dr M observed the children with both of their parents, and it is clear they got along very well with both of them.

13. In the evaluation portion of her report from paragraphs 50-54, Dr M said at paragraph 50:

    “50.  The father stated that he had initiated court proceedings in line with the children’swishes (sic).  The mother conceded that the children had a very positive relationship with their father but was not very receptive to them spending equal time with both parties.”

14. At paragraphs 51-54, Dr M continued:

    “51.  From observation he had a loving relationship with the children and was insightful about their different emotional needs.  He was responsive to their developmental needs and had not initiated seeking further time until the children were emotionally secure with such an arrangement.  The father was concerned about communication between the parties and was receptive to engaging in counselling. 

    52.  Ms Garner presented as a parent with a loving relationship with her children.  From observation of her interaction with the children, she was attentive and responsive to their needs.  The mother was a little anxious about changes to the children’s regime, but this seemed to be reactive to her needs rather than responsive to concerns about the children’s needs.  The mother also appeared more inflexible about changes to the children’s time and would benefit from counselling to assist her with understanding the changing needs of her children. 

    53.  The children presented with strong attachments to both parents.  They were both confident and assertive young people and whilst aware of the parental conflict had not been emotional harmed by these tensions.  However the parents need to be mindful about not exposing the children to conflict as this is more likely to impact on their emotional well-being.  Both children are at a developmental stage where they could cope and benefit from spending equal time with each parent.  Such an arrangement will enhance their identity with and attachment to both parents. 

    54.  The parties for the most part have been able to engage in a coparenting arrangement for the children.  They would benefit from counselling to assist them identify the current blocks in their communication and seek guidance on more effective strategies to deal with their different personality styles and life changes such as the role of step parents.”

15. Dr M went on to recommend an equal time regime, equal shared parental responsibilities, half the term school holidays and two-week blocks in the summer school holidays and ancillary orders for special days and the like.  She recommended counselling to assist the parties with their various difficulties and for Y with her sleeping problems.

The submissions and evidence at Court

1. Counsel for the father opened his case.  He confirmed that the dispute was about parenting orders only and that he was seeking equal shared parental responsibility and equal time.  He also submitted that the children had been very young when the original orders were made and that equal time was now appropriate and that the orders made should include family counselling.

2. Ms Garner, who was self-represented, made it clear, as already indicated, that she did not wish to cross-examine Dr M.  She wanted a five-nine arrangement to continue from school on Friday until school on Wednesday in alternate weeks.  It should be noted that the five-nine is from Wednesday after school until commencement of school on Friday in one week and, on the alternate week, on a Tuesday night and from Friday until after school until Sunday.  This multiplicity of changeovers may well have contributed to the difficulties in the past.

1. The mother also raised the question of who pays medical expenses and made it clear that she pressed orders 3, 4, 5 and 6 in her Response.

2. The father was called and adopted his affidavit as true and correct.  The mother elected not to cross-examine.

3. The mother made an opening address.  She addressed the matter in dispute in the father’s proposed order 9 (document MFI-1) and said that her address is already in the school records.  She said that both parties receive information from the school and, if I understand the matter correctly, that matter is now agreed.

4. So far as order 3 in her Response was sought she said that she has paid all medical expenses since separation.  The father pays child support of $1,100 per month.

5. So far as her proposed order 4 was concerned the mother wanted the parties to equally contribute any expenses on behalf of the children’s appearance, such as cosmetics or waxing.  So far as extra-curricular activities were concerned the mother said the girls had been dancing since they were 3.  She can only afford one activity and wanted the father to contribute half the costs.

6. She pressed for school fees, uniforms and the like to be paid equally by both parents and this was agreed by the father.

7. The mother then gave evidence and adopted her affidavits as true and correct.

8. Under cross-examination the mother said the children were happy and healthy and were 6 and 4, respectively, when the orders were made in 2008.  She had no concerns about the children when with the father.  He was a good father.  Y is now going to the same school as her sister and has been fully accepted.

9. The mother said that in the past the father travelled and she had the children anyway.  They were either with his mother or with her.  There was no reason there should be more time with her than with him.  She confirmed that the father pays $1,100 per month in child support, half school fees, half for one activity and pays for them when they are in his care.

10. In what was effectively re-examination the mother confirmed that child support, in her view, is only for living expenses.  She earns $45,000 per annum and pays $1,000 per month on a mortgage of approximately $180,000.

11. In submissions counsel for the father sought the orders set out in documents MFI-1 (essentially an agreed set of orders) and MFI-2, which are the matters in dispute.

12. Counsel submitted that the Family Law Act 1975 (“the Act”) envisages equal time and that there was no reason why this should not occur, given that the mother has no concerns about the father.  So far as configuring the time is concerned he wanted the time lined up with the uncle’s time with his children.  He was happy for equal tranches of time to commence on Mondays.

13. So far as finances were concerned the father has an income of $110,000 per year and pays $4,000 per month towards a mortgage and an investment property.

14. It was submitted that the father pays for dancing, half the school fees and the costs and expenses when the children are with him.  Private healthcare was the mother’s business, but all financial issues were settled in 2008.

15. The mother submitted that there had been no significant change in circumstances such as to overcome the difficulties with a Rice v Asplund (1979) FLC 90-725 objection. She said five days with her would be more consistent and that there would be difficulties from time to time with the father’s travel. Child support is only for living expenses and does not cover health insurance and school fees.

16. From the above recitation it is obvious that the matters in dispute between the parties are not that great.  To the limited extent that I was able to form any impressions of the parents from their evidence and demeanour in court, they both struck me, as they struck Dr M, as being thoroughly decent people.  The father has allowed his emotions to get much the better of him on occasions in his communications with the mother, but that is something that I will propose to address by appropriate counselling.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (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 and 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.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Shared Parental Responsibility

1. The Court is first required to consider whether there should be an order for equal shared parental responsibility.  Both parties seek it and it is recommended by Dr M.  There is no need to protect the children from risks of violence or abuse when both parents concede that it is appropriate that the children have a meaningful relationship with the other parent.  There will accordingly be an order for equal shared parental responsibility.

Equal time or substantial and significant time

1. This was, in substance, the battleground between the parties. In the particular circumstances of this case, in my view, both those proposals should be considered by reference to the matters in s.60CC of the Act.

Section 60CC(2)-The primary considerations

1. The matters that arise under this section are already referred to above.  They require only brief repeating.  Each parent concedes that there is a real benefit to the children to have a meaningful relationship with the other parent.  Neither parent has raised any matter giving rise to a need to protect the children from physical or psychological harm or from being exposed to abuse, neglect or family violence.

Section 60CC(3)(a)- The additional considerations

1. The children appear to be at least reasonably mature at the ages of 14 (X) and 11 (Y).  From the report of Dr M it is clear that X is now older than she was in 2008 and “wanted to spend more time with her father” (paragraph 28).

2. I note that X stated that the current arrangements were more difficult because of logistical problems and, in my view, that is highly likely to be the case.

3. I note that X had contemplated the logistics of spending equal time with both parents and offered suggestions about this.  She has a positive relationship with the father’s new partner.

4. Y had also turned her mind to the practicalities of living between two households and that she would enjoy spending a week with each parent, although a three week block would be too long (paragraph 38).  Given Dr M’s assessment of the children as “confident and assertive young people” (paragraph 53) the children’s views should be given considerable weight.

Section 60CC(3)(b)

1. It is clear that the children have strong attachments to both parents.  Although Dr M’s report does not go into a great deal of detail about the children’s relationship with the father’s new partner Ms V, X has a positive relationship with her and Y said nothing to suggest the contrary.  Given that she was happy with a potential week about arrangement it is reasonable to conclude that Y’s relationship with Ms V is unremarkable at worst.

2. There is no information in the materials to enlighten the Court as to the nature of the children’s relationship with extended family members beyond the father’s assertion that they would like to see his brother’s children.

Section 60CC(3)(c)

1. Both of these parents have taken, as far as I can see, proper steps to participate in making decisions about the major long-term issues in relation to the children and to spend time and communicate with them.  The one caveat I would express in this regard is that the father’s endeavours to participate in decision making have been, at times, overly assertive, robust and, on occasions, impolite.

Section 60CC(3)(c)(a)

1. The father pays child support as assessed.  The mother is clearly a loving and committed parent.  The minor issues between the parties as to financial contributions to various ancillary matters does not, in my view, significantly alter the overall pattern.

Section 60CC(3)(d)

1. The major change contemplated in the children’s circumstances is the possible move to an equal time regime, or if the mother is successful, a single block of 9/5, rather than two blocks of time.

2. The children have expressed their approval of the move to a week about arrangement.  In my view, that is significant.  The children have also raised issues to do with the difficulties associated with the existing regime which should not survive, in any event.  One block of time from Friday to Wednesday would clearly be better to the two blocks that presently obtain.

Section 60CC(3)(e)

1. While there may be some minor difficulties from time to time with the children transitioning from one household to another in terms of their possessions, in the scheme of things this is minor.  There is, in my view, no significant practical difficulty or expense associated with the children maintaining their personal relationships with their parents.

Section 60CC(3)(f)

1. It is clear that each of the parents is well able to provide for the needs of the children.  The only criticism advanced of Ms V is that she may perhaps be slightly over-involved.  I note that the father has discussed with Ms V her role with the children and she is going to seek to be a friend to them.  It is obviously desirable if this role continues in that fashion.

Section 60CC(3)(g)

1. There is simply nothing remarkable about the maturity, sex, lifestyle and background of the children or their parents to require attention from the Court.

Section 60CC(3)(h)

1. This is not relevant.

60CC(3)(i)

1. Both these parents demonstrate an exemplary attitude towards the responsibilities of parents.

Section 60CC(3)(j)

1. Although, X, apparently, heard her parents arguing prior to separation, there is simply nothing in the history between the parents that suggests that there is any work for this subsection to do in this case.

Section 60CC(3)(k)

1. This is irrelevant.

Section 60CC(3)(l)

1. It is plainly desirable to make final orders in this proceeding.

Section 60CC(3)(m)

1. A relevant further consideration in this matter is the mother’s Rice v Asplund point.  In my view, there has been a material change of circumstances.  The children are now substantially older than they were when the original orders were made.  The father has delayed bringing his application to extend his time with the children in a way that Dr M found entirely appropriate and commendable.  The Rice v Asplund point was in a sense pressed really only towards the end of the proceedings, although, of course, it is a doctrine that can still be applied at that time.  It is sufficient, in my view, to say that the circumstances have materially changed.  Not only are the children much older, but they have expressed clear views (and X noted that she had had no involvement in the formulation of the earlier orders).  It is plainly in the children’s best interests that there be a further investigation into the children’s circumstances.  It needs to be borne in mind that, as Warnick J said in SPS v PLS [2008] FamCAFC 16 at [77]-[79], the children’s best interests remain the overarching consideration.

Conclusion on the various matters in dispute

The time regime

1. In my opinion, taken cumulatively, and noting in particular the recommendations of Dr M, who was not challenged by cross-examination, it is clear that the equal time regime the father seeks should be put in place.  The children appear to want it.  It will reduce the number of changeovers in any event.  While it is a significant change in the children’s circumstances, it is not necessary in my view to say more than this.

2. The orders will need to be formulated in such a fashion as to at least keep open the option of the children spending time with their cousins, the children of the father’s brother. 

Communication

1. The materials filed by the parties are disconcerting.  As I have indicated on more than one occasion, the father’s style is combative and at times rude.  The father is open to counselling to help improve the way the parties communicate, and I think the parties can only benefit from this.  I will order them to attend a course conducted by Relationships Australia accordingly.

Y’s fears

1. It is apparent that this is an ongoing issue for Y, and, plainly, there should be counselling to assist her with her difficulties.

Time in the summer holidays

1. Y does not want to spend as long as three weeks with either parent.  Dr M has recommended tranches of two weeks turnabout, and I will adopt that recommendation.

Non-denigration

1. The proposed orders that are largely agreed (document MFI-1) include an order 22 which is intended to be a non-denigration clause.  That will be cast in terms more familiar to the Court’s usual terminology.

Private health

1. In the ultimate, decisions as to whether to take out private health are personal to each of the parents.  It is the mother’s privilege to take it out, and the children undoubtedly benefit from it.  The father’s response is niggardly and unattractive but it is inappropriate for me to force him to pay such a fee. 

Cosmetic treatments for the children

1. When the children have hair removal and the like it is a matter that falls to be addressed under the shared parental responsibility.  The parties will have to communicate about whether or not this occurs.  In the ultimate, if they both agree, it seems logical to suggest that they both pay.  If they do not agree, they will be left at risk of returning to court.  That would be a tragedy.  In the circumstances I will direct that the parties consult about any cosmetic treatments for the children, but that the mother have the final say.  If she proceeds against the wishes of the father, then she must pay for it herself. 

Payment for extracurricular activities

1. As I understand it, the father agrees that he should pay half the fees for extracurricular activities.  I will order accordingly.

School fees and related matters

1. As I understand it, this matter is agreed.  I note that the mother says the father does not, in fact, pay what he should do, but that is a matter for enforcement.

Conclusion

1. I have drawn draft orders to give effect to these conclusions.  I believe they reflect the matters agreed when the proceeding was before the Court together with my own conclusions as set out above.  There will need to be some tweaking to commence the week-about arrangement in any event, and I will give the parties an opportunity to study these reasons and draft orders in case there are any matters I have misunderstood or overlooked. 

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 16 September 2015