STEPHANOPOULOS & STEPHANOPOULOS

[2016] FamCA 65

FAMILY COURT OF AUSTRALIA

STEPHANOPOULOS & STEPHANOPOULOS [2016] FamCA 65

FAMILY LAW – CHILDREN – Interim Parenting – Best interests of the children – Parental Responsibility – With whom the children live – Where present shared arrangements unsuitable – Ongoing conflict and poor communication between the parents – Benefit to the children of a meaningful relationship with both parents – Substantial and significant time arrangement in the best interests of the children.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
C & C [2013] FamCAFC 182
Goode and & Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) 240 CLR 461

APPLICANT: Mr Stephanopoulos

RESPONDENT: Ms Stephanopoulos

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

FILE NUMBER: PAC 3077 of 2015

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maurice

SOLICITOR FOR THE APPLICANT: Kazi Portolesi Lawyers

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Somerville Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

ORDERS PENDING FURTHER ORDER:

1. That the mother and the father have equal shared parental responsibility for the children B born … 2004 and C born … 2007.

2. That the children live with the mother.

3. That the children spend time with the father as agreed between the mother and father in writing with such writing to include SMS and email communication and in default of agreement as follows:

   (a)       During school term each alternate weekend from after school Thursday to before school Monday commencing on the second weekend after the date of these orders for the current school term and thereafter commencing on the second weekend after the resumption of each school term;

   (b)       During school term each alternate week from after school Thursday to before school Friday commencing on the first Thursday after the date of these orders for the current school term and thereafter commencing on the first Thursday after the resumption of school term;

   (c)       For one half of the children’s end of term school holidays being the first half of each school holiday period commencing on the first day of such holiday period at 9:00am and concluding on the midpoint Saturday of such holiday period at 5:00pm.

4. That the mother and father are at liberty to attend on occasions significant to the welfare of the children being occasions relating to education, religious education, sport, extracurricular activities and other occasions significant to the welfare of the children being occasions where the attendance of either or both parents is to be reasonably expected.

5. That the mother and father do all things reasonably necessary when the children are living with or spending time with each of them to facilitate the children having telephone contact with the other parent on not less than each alternate day during such period and to facilitate such time ensure that the other parent is informed of a mobile or landline telephone number on which the children may be contacted and that such mobile or landline telephone number is reasonably available to the children to answer the other parent’s phone call which shall absent agreement be between 6:00pm and 7:00pm in the evening on such days.

NOTATION

(A)The order for equal shared parental responsibility made in these proceedings today is sufficient authority for each parent to obtain information and documents relating to the children’s schooling directly by each of them from the school and information as to the children’s health from the children’s treating medical practitioners from time to time without the necessity of written authority from the other parent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stephanopoulos & Stephanopoulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3077  of 2015

Mr Stephanopoulos

Applicant

And

Ms Stephanopoulos

Respondent

REASONS FOR JUDGMENT

1. The present application relates to interim parenting arrangements for the children B born in 2004 and C born in 2007.

2. The interim application arises by reason of the father’s application initiating proceedings filed on 26 June 2015 and the mother’s response to that application filed on 27 July 2015.

3. The proceedings were before the Court on 10 August 2015 and on that date the parties were ordered to attend for the purposes of a Children and Parents Issues Assessment on 7 September 2015. A memorandum arising from that assessment is dated 8 September 2015.

4. On 14 September 2015, upon noting that it was the Court’s expectation that the parties will seek appropriate therapeutic intervention in relation to the children’s arrangements, leave was granted to the parties to provide a copy of the memorandum to any therapist with whom they and the children engaged. Proceedings were adjourned to 13 November 2015 with the mother and father each ordered to file and serve a minute of proposed interim parenting orders by no later than 11 November 2015.

5. On 13 November 2015 the parties were unable to reach agreement in relation to interim arrangements for the children and an Independent Children’s Lawyer (“ICL”) was appointed for the children. The parties’ respective interim parenting applications were adjourned for hearing on 22 January 2016.

Context

1. The parties were married in 2004 after a period of cohabitation and separated under the one roof in February 2014. Final physical separation was in December 2014.

2. The children are the children of the parties’ relationship.

3. The father relied upon his affidavit filed on 22 January 2016.

4. The mother relied upon her affidavit filed on 20 January 2016.

5. The matrimonial home of the parties was situate at Suburb D. The parties jointly own a second property “Property E”, F Town area just south west of Sydney.

6. During the period of separation under the one roof the mother and father spent one night a week at the E property and some weekends together with the children at E.

7. There was conflict between the parties in the first week of December 2014 in which the police were involved and attended (Exh E). The police seized a shotgun, air rifle and rifle owned by the father. The father later surrendered a further rifle to the police. All four firearms were returned to the father on 12 March 2015.

8. Subsequently the father asserts that it was resolved that he and the mother should live separately. The mother asserts that the father refused to move out of the matrimonial home and she had no alternative but to move out. The mother assumed sole occupancy of the E property at F Town and the father assumed sole occupancy of the matrimonial home.

9. Subsequent to this final separation the parties and the children holidayed together on the Gold Coast for a period of 10 days during which the mother returned to Sydney after five days.

10. Subsequent to the final separation in December 2014 the children spent time with the father in the matrimonial home and continued to attend school nearby. The father, who was in full-time employment, was assisted in the care of the children by his parents, his brother and sister-in-law as needed. On occasions the mother attended at the home to assist the father, attending at the home on a regular basis and otherwise attending to the children’s needs and education on days the children were ostensibly in the father’s care. Her regular attendances at the matrimonial home ended in early May 2015 when the father prevented her attendances at the home by changing the locks. The mother asserts that it was this incident that led to her relocating her residence to Suburb G.

11. Subsequent to her exclusion from the matrimonial home the mother has observed the child B regress in relation to his behaviour. To her observation the child has become insecure, confused and started to display feelings of withdrawal and fits of anger. In late May 2015, B struck another child at the school. The mother resumed B’s engagement with his psychologist and subsequent to the mother relocating her residence to Suburb G the mother has observed an improvement in the child’s behaviour, appearing happier and calmer at school.

12. At the end of May 2015 the mother relocated her residence from the E property to Suburb G in Sydney. The mother’s residence at Suburb G is only a short distance from the matrimonial home at Suburb D and the children’s school.

13. The mother’s Suburb G property comprises a three-bedroom duplex at which the children each have their own bedroom. The house is in a quiet cul-de-sac and opposite the park that has sporting facilities. The property is three minutes’ drive from the children’s present school. On most weekends the mother takes the children to the E property.

14. Subsequent to the mother moving to Suburb G the parties implemented in a fashion a shared care arrangement. In a two-week cycle the children in week one were with the father on Monday, Wednesday, Friday, Saturday and Sunday and with the mother on Tuesday and Thursday and in week two the children were with the father on Monday and Wednesday and otherwise with the mother on Tuesday, Thursday, Friday, Saturday and Sunday.

15. The father has enrolled the children in extracurricular activities on afternoons during the week. The children’s attendance at school, their extracurricular activities and the many movements between the parent’s households is appearing to have an adverse effect on the children as discussed below. B was the subject of behavioural issues at school in late October 2015 and early November 2015.

16. On 5 November 2015 B attended upon his psychologist Ms H who reported to the mother that B complained of difficulty in managing his emotions, that he feels tired and has too many things to attend, feels pressure completing his homework, that he wants and misses his free time, that there are too many changeovers and the parenting days are confusing and that he worries about the current parenting regime. The mother asserts that the father has not engaged appropriately with the psychologist.

17. To the mother’s observation the child C was particularly affected by the final separation. The child has spoken to the mother in terms that suggest that the father has engaged the child in the parental dispute. To the mother’s observation the child becomes distressed when he does not have proper uniforms, clothes and necessities for school and that the child has become increasingly anxious about his homework. To the mother’s observation the child’s reading register is really completed by the father who to the mother’s observation struggles himself with literacy and reading.

18. The father asserts that subsequent to final physical separation the children’s time with the mother was irregular but appears to have settled into an arrangement where the mother would see the children for two or three nights after school every week and the children would spend alternate weekends with the mother with school holidays being shared. There continued to be an ongoing dispute between the mother and father as to the children’s arrangements with both parents acting in a unilateral way. The mother asserts that during this period the father would spend two or three nights a week at the E property with the children spending weekends with the mother at the property with the father spending some weekends there. In the context of the present application little turns on this issue.

19. The father works at I Pty Ltd, a business operated by he and his brother through I Pty Ltd. He asserts that his hours are flexible and facilitate him being available to the children when they are in his care.

20. Both parties make allegations against the other as to conduct, and in relation to circumstances that one would expect would impact on their respective parenting capacity. The mother particularly makes assertions in relation to the father’s health generally and his mental health. Yet both parents seek that the children spend at least substantial and significant time with the other parent. The issues relating to parental capacity will await a determination on the basis of contested evidence.

21. The mother has re-engaged the children with a psychologist, Ms H, since final separation to assist the children cope with the separation of the parents.

22. Both parents have been significantly engaged in their children’s lives. The mother and father shared the care of the children during the 2015/2016 school holidays.

23. The mother expresses concerns that the father’s proposal would see the children away from her for a significant period of time each fortnight. She expresses some concern that the child C would not cope with a separation for such a period. She has similar reservations in relation to the child B who suffers from some medical and developmental difficulties and whom she is describes as a very sensitive child.

24. It is clear that the parties have poor communication skills with the father often not responding to the mother’s communications. The lack of appropriate child focused communication between the mother and father in itself is often an indicator contrary to a shared care arrangement.

The parties’ proposals

1. In substance the father’s proposal is that the children remain in an equal time arrangement on a week-about basis. In summary the father seeks the following interim parenting orders:

   a)That the mother and father have equal shared parental responsibility for the children;

   b)That unless the mother and father otherwise agree in writing during school term the children live in a week-about arrangement with changeovers occurring on a Monday after school and that the children spend each Wednesday from after school until 7:00pm with the non-resident parent;

   c)That the children’s school holidays be shared;

   d)Otherwise the father sought specific issues orders as to communication between the mother and father and the children, arrangements for time on special days, and the obtaining of information relating to schooling and health by each parent.

2. The mother in summary seeks the following interim orders:

   a)That the mother and father have equal shared parental responsibility for the children;

   b)That the children live with the mother;

   c)That the children spend time with the father as agreed and in default of agreement during school term each alternate weekend from after school Thursday to before school Monday and each alternate Thursday from after school to before school Friday;

   d)That the children’s school holidays be shared;

   e)Specific issues orders in relation to special days, communication and information as to the children’s welfare.

3. Both parties sought mutual non-denigration orders.

The ICL’s proposal

1. The ICL, having had the benefit of the Child Responsive Program Memorandum dated 8 September 2015, the opportunity to peruse the volume of material produced on subpoena and having had a conference with the children, provided the Court with a Minute of Orders sought by the ICL on behalf of the children.

2. The ICL in summary sought the following orders:

   a)That the mother and father have equal shared parental responsibility;

   b)That the children live with the mother when not living with the father;

   c)That the children live with the father at times agreed between the mother and father and in default during school term each alternate week from after school Thursday to the commencement of school the following Wednesday;

   d)That the children’s school holidays be shared;

   e)Specific issues orders as to telephone communication with the children, the parties’ time with the children on special days being Mother’s Day, Father’s Day and the children’s birthdays, that both parents be able to attend events relating to the children’s welfare, implementation of changeovers, the mutual exchange of information relating to the children, and mutual non-denigration orders.

The objective evidence

The Child Responsive Program Memorandum (Exh B)

1. The Child Responsive Program Memorandum is dated 8 September 2015. The interviews for the conference were undertaken shortly after the father returned from the Gold Coast with the children.

2. The family consultant interviewed both of the children, reporting that the child B presented as a confident and happy child. Regrettably the child indicated that the father had talked to him about parenting arrangements and knew that his father would like him and his brother to spend a week-about with each parent. The child reported that he thought that his mother would be “sad” if such an arrangement was in place and he did not want his mother to be sad.

3. The child seemed to be aware of various arrangements for time with each parent, including an arrangement of three days on, four nights off, four days on and three nights off with either parent and also an arrangement where he knew a child who spent all week with his mother and each weekend with his father. The child ventured that all of the proposals would be all right to him.

4. Regrettably B has memories of conflict between his parents during cohabitation, remembering his parents and yelling at one another, describing that as “scary”.

5. He reported that there were sometimes problems with school clothes.

6. On interview with the family consultant the child C reported that he was quite clear why he was “at court”. C reported that the current arrangements were confusing but were good because he gets to see both parents. However C further reported that there were negative aspects to the current arrangements as he did not get much time with each parent and he has the wrong school clothes some times. C suggested maybe a week-about in each household or a four nights, three nights split week, reporting that B had made that up and told him about it.

7. In describing risk factors the family consultant outlined the mother’s concerns as to family violence in the home. The mother alleged that the father was controlling and verbally abusive towards her. She further reported that the father in anger smashed things and threw them across the room and had been physically abusive towards her on three occasions, the last time being in December 2014. She called the police. For his part the father denied there had been any violence between he and the mother although acknowledging that on one occasion the police had been called.

8. The family consultant noted mental health as a risk factor. The mother reported that the father had had bouts of depression over the years and took medication for two years and whilst on medication he was “great” but at other times he appeared to be an “angry and bitter man”. The father reported that he believes he experiences anxiety but has not been diagnosed nor does he take medication. He asserted that the mother had been diagnosed with depression and had been on medication in the past.

9. A further risk factor identified by the family consultant was drugs. The mother alleged that the father had used cocaine, she having found drugs in 2006. The mother reported that she found drugs in the father’s possession in 2014 and alleged that the father “went heavy” using drugs in 2014 but that the father’s brother now keeps a firm eye on him. The father conceded that he had used cocaine in the past but denied any use for three or four years. He alleged that the mother had used cocaine on at least one occasion in the past.

10. In the context of any interim hearing these allegations one against the other cannot be resolved in the absence of objective evidence.

1. In relation to co-parenting the family consultant noted the mother’s concern about the father being unable to care for the children in a week-about arrangement and meet all of their needs. The mother asserted that the father had never done this in the past and that she was historically the children’s primary carer.

2. In evaluation the family consultant noted that the children were aware of the conflict between their parents. It was recommended that both parents should attend a post-separation parenting course in order to learn about the long-term impact of exposure to conflict on children. The ongoing legal battle could lead to the parents making poor decisions about how to treat one another and potentially have a negative lifelong impact on their relationship and on their children.

3. The current parenting arrangements were seen by the family consultant as disruptive in that there were too many changeovers particularly during the school week. The family consultant noted the contra-indicators for an equal time relationship based on the current co-parenting relationship. She opined that good communication is generally a prerequisite for positive outcomes. In addition she said allegations of controlling and coercive behaviour by the father have been raised by the mother.

4. Subject to issues of risk referred to above the family consultant was of the view it was likely helpful for both parents to have significant time with the children in the interim period. Such would allow an informed assessment to be made of the application by the father for equal time.

5. Both parents were advised to consider a five/nine arrangement with the children living primarily with the mother for a block period each alternate weekend and an overnight in the off week.

Ms H, Clinical Psychologist (Exh F)

1. The psychologist undertook a psycho-educational assessment of the child B in March 2014. She reported that the child had previously been referred for testing in 2012 that placed his overall levels of intellectual functioning in the borderline range, but was seen by his teachers as currently performing above these levels. She further reported that the results of the current cognitive assessment indicated that B is a boy of average overall intellectual functioning. His verbal abilities, working memory and processing speed were all in the average range for his age, while his non-verbal (perceptual reasoning) abilities were in the low average range. Variable attention was noted to affect his performance on the non-verbal tasks and was also evident across working memory tasks he completed as part of the assessment.

2. Subsequently both children were referred to the psychologist pursuant to a mental health plan at the instigation of the mother following separation.

3. On 28 July 2015 the psychologist reported back to the referring GP Dr J relevantly as discussed below.

4. As to the child C the psychologist was provided background information by the mother and also spoke to the father by phone. Concerns were noted in relation to the impact on the child of the recent parental separation. Concerns were also raised about the stress and confusion the child experienced when witnessing parental discord and hostile interactions by his father towards his mother. In particular the child was greatly affected by an incident at the family home in which the mother was forced to leave the home permanently and find alternate accommodation.

5. The child C had a reported history of separation anxiety from the age of two years with the mother reporting that the child had always been clingy towards her. The child identified various worries that centred around his parents and school concerns. It was noted by the psychologist that the mother reported the child making a number of negative comments in relation to her after spending time with the father. There were concerns in relation to an increase in the child’s “checking in” behaviour, with the child waking to ensure that the mother was still there when he was in her care. The mother further reported to the psychologist that there were difficulties with C controlling his temper with such behaviour being more evident on changeover days but his behaviour being more settled and positive when he spent consecutive days with the mother. It was recommended that the child would benefit from further counselling and opportunities to discuss his feelings and learn strategies to manage his anxiety.

6. As to the child B it was noted that the child was referred because of concerns about anxiety and impaired concentration against a background of “recent parental separation”, referring to the mother’s exclusion from the matrimonial home in May 2015.

7. B, she said, found his parents’ separation sad and confusing. B worried when he was away from his mother that she may be getting “attacked” or “robbed” and that he would not be able to help her. B felt protective of his mother and worried that he should step in and intervene on her behalf when disputes arose between his parents. B further expressed confusion when he had been picked up early from school by his father or when other unplanned changes to the parental schedule took place. Regrettably the psychologist reported that the child was beginning to develop an awareness of the issues between his parents and was clearly finding that stressful.

8. The more recent notes from the psychologist revealed an interview with the children on 6 November 2015. When asked about the current parenting arrangements it appears that C responded “could be better, a little bit confusing now – one day there – hard to organise things for classes – have to take things from house-to-house”. C was noted to express concerns about his mother noted by the psychologist as “scared when mum goes – worries re-his mum “loves her” “thinks something bad will happen to her” “she has no one” “wants to protect her”.

9. B on the same day reported to the psychologist the difficulties he had at school with his mood. It was clear that the child was engaged in the issue as to his time with each parent with him “trying to think of the decision that everyone agrees with”. B expressed concerns about his homework as his after school activities left him only one day free. He said he was too tired with not enough time to do his homework.

10. In the same interview B expressed concerns as to the father putting the child into competitive sport and that the child now had four days of extracurricular activities that affected his ability to do his homework that he used to love doing. The mother reported difficulties with the father assisting B with his homework due to the father’s weaker literacy skills, with homework having to be redone and that was frustrating for the child. There were similar concerns noted about homework on interview on 7 December 2015.

11. On interview on 5 January 2016 B reported that his parents were arguing on the phone and he wanted less of that but they had not spoken for the last three months so there were fewer arguments. B discussed various scenarios for time with each of his parents and when it was suggested that he talk about what would work on a day to day basis he said that “more time in the week with mum because she was more organised, dad free on the weekends”.

Interim parenting

1. In Marvel & Marvel (No. 2) [2010] FamCAFC 101 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:

   120.     As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. (emphasis added). This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   …

   122.     In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

2. In C & C [2013] FamCAFC 182 the Full Court cited Deiter & Deiter [2011] FamCAFC 82 in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.

3. In Deiter (supra) the Court was there concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. The relevant principles in relation to parenting are well settled (Goode & Goode [2006] FamCA 1346). Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child. Section 61DA of the Act provides that when making a parenting order, 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.

6. If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

7. Section 61DA of the Act provides that when making a parenting order, 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. The presumption does not apply where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence (s 61DA(2));

   b)In interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3)); and

   c)If the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests (s 61DA(4)).

8. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the “legislative pathway”.

9. Clearly in this matter presumption is to apply. The parties and the ICL support an order for equal shared parental responsibility. Notwithstanding aspects of conflict and poor communication it is in the best interests of the children for such an order to be made.

10. Such order “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

11. Section 65DAA(5) provides:

    Reasonable practicality

    (5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must 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.

12. The father seeks an equal time arrangement and the mother and ICL a substantial and significant time arrangement. There is no submission that either is not reasonably practicable.

13. The real question is what is in the children’s best interests by reason of a consideration of the s 60CC factors.

The primary considerations: s 60CC(2)

1. The primary considerations are:

   a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The protective factors in s 60CC (2)(b) are to be given primacy if relevant.

3. In Mazorski & Albright [2007] FamCA 520 Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   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.

4. In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.

5. Both children have a good relationship with each of their parents. Initially for a period separation was under one roof, and subsequent to final physical separation the children have spent substantial and significant time in the care of each parent.

6. Neither child expresses any significant concerns in relation to their parents. Clearly the children have adopted a protective approach to their mother who they now perceive to be on her own. Such a circumstance could indicate a more emotional attachment to the mother than the father. However it is important to fashion orders that will continue to promote the children’s relationships with both parents and ensure that the children have a substantial and significant relationship with each of them.

7. At present there are no pressing protective concerns although both parents need to be mindful of the nature of their conflictual relationship and their poor communication that has already started to place the children in the middle of the conflict between them. There are significant indications that the children are becoming engaged in the conflict between their parents particularly as it relates to their physical care arrangements.

The additional considerations: s 60CC(3)

1. Matters touching upon the views expressed by the children are referred to above. It is certainly clear that the children want the issue of their time with each parent resolved to the extent that they have discussed between themselves certain options that may be available. B is 11 years of age and C eight years of age. Both children have expressed concern about the difficulties of the fractured shared care arrangement in which they live. B has complained about difficulties in completing his homework and the extracurricular activities in which his father has him engaged. It is to be inferred from what has been said to the psychologist by the children that they both perceive the mother’s household to be more organised and particularly in relation to B more supportive of his homework obligations.

2. As referred to above the children have a good relationship with each of their parents. Regrettably that relationship is over clouded by the poor communication between the parents and their ongoing conflict. Perhaps a resolution of outstanding final issues may significantly resolve that conflict but such a resolution appears to be some time off. Both children have relationships with extended family on both sides. As discussed above it is important to maintain the children’s relationship with each parent but in a circumstance that is valuable to each child.

3. Both parents have taken the opportunity to participate in long-term decisions about the children, spend time with the children and communicate with the children particularly in the circumstances that have been in place since separation, although their engagement has been conflictual.

4. It appears that both parents have fulfilled their obligation to maintain the children, although there is some concern in that the father is presently now unemployed and his financial circumstances into the future are uncertain. The mother is in full-time employment and able to provide financially for the children.

5. A change in the present fractured shared arrangements in relation to the children is called for by all. The father seeks to consolidate the arrangements into a week-about arrangement with both the mother and the ICL propounding substantial and significant time with the father, reflecting the family consultant’s suggestion to the parties. It is clear that there are concerns as to a shared care arrangement on a week-about basis. The children appear to have a stronger emotional attachment to the mother and see her household as calmer and more organised. There are concerns as to the father’s ability to assist the children, particularly B with his homework. There are further concerns as to the extent the father has sought to engage the children in after school sport and activities. Provided that the children maintain a substantial and significant relationship with their father, a move to the primary care of the mother would meet the children’s needs and have little adverse effect by reason of spending a shorter period with their father.

6. There is no practical difficulty or expense in the children spending time with each of the parents who live in close proximity to each other and to the children’s school.

7. There are some concerns as to organisational skills and literacy skills in relation to parental capacity as they relate to the father however they are not capable of resolution on an interim basis and await a hearing on a final basis. The father makes no criticism of the mother’s parental capacity. Both parents, provided they look introspectively to their poor communication and conflict, are able to provide for the children emotionally. Both parents seem to be alert to developmental difficulties emotionally and intellectually for B.

1. There are no relevant issues arising from the maturity, sex, lifestyle and background of the children or the parents.

2. Both parents have demonstrated little insight or reflective capacity as to the needs of their children. The present shared care arrangement is demonstrably, as discussed above, unsuitable for the children and has simply given rise to ongoing conflict between the parents. As such an assessment of their respective responsibilities of parenthood is compromised. It is hoped that a more appropriate settling of the children’s arrangements will facilitate both parents looking introspectively as to their interpersonal relationship and appropriately as to the needs of the children.

3. There have been issues between the parties as to behaviour, on one occasion requiring the police to attend. However there are no issues as to family violence that can be determined such as to cause this consideration to be of any relevance. There is no family violence order nor has there been one.

4. The present consideration is as to interim issues relating to the children’s parenting arrangements and as such appropriate final arrangements for parenting will await a further final hearing or agreement between the parties.

5. There are no other relevant facts or circumstances for consideration.

Discussion

1. A consideration of the “best interests” factors as set out above is clearly indicative of an equal time arrangement for these children being inappropriate at this stage of their lives and in the context of the ongoing conflict and poor communication between the parents.

2. As to substantial and significant time, both the mother and the ICL seek orders that would put in place a substantial and significant time arrangement for the children to spend with the father. Such arrangement would address issues in terms of the children’s perceptions as to the organisation in each household, their uncertainty as to their day-to-day arrangements, perhaps reduce conflict between the parties and assist the parties’ communication by removing from the parents their day-to-day ability to depart from agreed arrangements that are not the subject of court orders.

3. The ICL seeks the implementation of an arrangement whereby the children live with the father at times agreed between the mother and father and in default during school term each alternate week from after school Thursday to the commencement of school the following Wednesday. This arrangement would implement an eight/six split of the children between each household. Such arrangement would be substantially reflective of the current arrangement in terms of nights in each household but would not address the underlying concerns reflected in the children’s wishes and views and the concerns expressed by the mother as to the father’s capacity.

4. The mother’s proposal, whereby the children spend time with the father as agreed, and in default of agreement during school term each alternate weekend from after school Thursday to before school Monday and each alternate Thursday from after school to before school Friday, would see the children spend an alternate long weekend with the father and an off-week overnight with the father with both periods commencing on a Thursday after school. The proposal reflects substantially the family consultant’s proposition as to a nine/five split.

5. The children have expressed some concern as to the time away from each parent should there be a week-about arrangement and the mother’s proposal addresses this by reason of the off-week overnight period.

6. Having regard to the matters discussed above it is in the best interests of the children on an interim basis for the mother’s proposal to be implemented.

7. Otherwise both parents seek to be engaged with the children on occasions significant to the children’s welfare. It will be a matter for the mother to give consideration to a rationalisation of the children’s extracurricular activities when they are in her care. However both parties should be able to attend on occasions significant to the children’s welfare and an order will be made accordingly.

8. Both parents will have the children on a regular basis and as it is anticipated the matter will not be heard until later this year it is appropriate to make orders as to Mother’s Day and Father’s Day weekends. Other occasions such as the children’s birthdays or the parents’ birthdays should be the subject of agreement between the parties.

9. Orders will be made accordingly.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 February 2016.

Associate: 

Date:  11 February 2016