Tappan and Perkins
[2010] FMCAfam 413
•31 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAPPAN & PERKINS | [2010] FMCAfam 413 |
| FAMILY LAW – Children – best interests considerations – children’s views – school holiday time (including overseas holiday) – religious observance & non-resident parent – issues of advocacy. |
| Family Law Act 1975, ss.60B(1), 60B(1)(a), 60CC, 60CC(1), 60CC(2)(a), 60CC(3)(a), 60CC(3)(b), 60CC(3)(b)(ii), 60CC(3)(c), 60CC(3)(e), 60CC(3)(f), 60CC(3)(i), 60CC(4), 60CC(4A), 60CD, 61DA, 65DAA(1), 65DAA(2) |
| Goode v Goode (2007) 36 Fam LR 422 J.T. Gleeson SC & R.C.A. Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (Sydney: The Federation Press, 2008) |
| Applicant: | MR TAPPAN |
| Respondent: | MS PERKINS |
| File Number: | CAC 1337 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 5 March 2010 |
| Date of Last Submission: | 19 March 2010 |
| Delivered at: | Canberra |
| Delivered on: | 31 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Ken Cush & Associates |
| Counsel for the Respondent: | Mr J Millar |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
CONSENT ORDERS
The parents have equal shared parental responsibility in relation to the children [X], born [in] 1996 and [Y], born [in] 2000 (“the children”).
The children live with the mother.
The children spend time with the father during school times as follows:
(a)from after school at the conclusion of week 3 of each school term until before school on the Friday of week 4 of each school term;
(b)from after school at the conclusion of week 7 of each school term until before school on the Friday of week 8 of each school term.
ORDERS
Overseas Holiday
Upon providing to the Mother a detailed itinerary, the Father be permitted to take the children [X], born [in] 1996 and [Y], born [in] 2000 out of the Commonwealth of Australia for the purposes of a holiday to Europe commencing on 19 September 2010 with the children to be returned to school at the commencement of Term 4.
The Father shall provide the Mother with compensatory time with the children as agreed. If an agreement is unable to be reached, both parties have liberty to apply in this respect
Religious observance
The Father shall facilitate the children’s usual attendance at any weekly Sunday religious observance, or other usual religious observance, whenever they are in his care.
Communication
The Father may communicate by telephone with the children each Tuesday and Friday between 6:00pm and 7:00pm, or as otherwise agreed in writing.
The children be at liberty to telephone the parent with whom they are not living with at any reasonable time.
School Holiday Time
The children spend time with their Father during school holiday periods as follows:
(a)For the first term school holiday as observed by [D] School from after school on Friday to 5:00pm on the Wednesday prior to the commencement of school ;
(b)For the second half of the mid-year school holidays with the changeover to occur on the Wednesday morning of the middle week of the June school holidays, with dates calculated with reference to the holidays observed by [D] School;
(c)For the third term school holiday as observed by [D] School from after school on Friday to 5:00pm on the Wednesday prior to the commencement of school; and
(d)In the December/January school holiday periods the children shall live with their parents on the following basis:
(i)For the first three weeks of the school holiday period as observed by [D] School with the Mother in holiday periods commencing in 2010 and each even year thereafter and then with the Father for the remainder of such school holiday periods;
(ii)With the Mother for the last three weeks of the school holiday period as observed by [D] School in holidays commencing in 2011 and each alternate year thereafter, and with the Father for the preceding period of such school holiday periods;
(iii)In respect of Christmas holiday periods changeover shall occur at 6:00pm on the Sunday at the end of the three weeks the children live with the Mother in holidays commencing in even numbered years and at 9:00am on the day three weeks prior to the first day of Term 1 (being the first day the children are required to attend school) when the child are returning to their Mother in holidays commencing in odd numbered years.
Christmas & Easter
Notwithstanding these Orders:
(a)The children live with the Mother from 12:00pm Christmas Eve to 9:00am Boxing Day years ending in an odd number and the children spend time with the Father from 9:00am Boxing Day to6:00pm Boxing Day; and
(b)That the children live with the Father from 12:00pm Christmas Eve to 9:00am Boxing Day years ending in an even number and the children spend time with the Mother from 9:00am Boxing Day to6:00pm Boxing Day.
Notwithstanding these Orders, the children live with he Mother for the period from 10:00am Good Friday to 4:00pm Easter Monday.
Changeover
Unless otherwise agreed in writing where changeover occurs on a school day changeover shall be at the children’s school; when changeover is not on a school day it shall occur at an agreed public third party venue (eg. McDonalds). Such venue shall not include the Paternal Grandmother’s house or the driveway of the Mother’s house.
Birthdays and Other Special Days
The Mother shall make the children available to spend time with the Father within one week, prior or post, each child’s and the Father’s birthdays from Friday after school until 7:30pm on Saturday.
Notwithstanding these Orders the children will spend time with the Mother from 12:00pm to 6:00pm each Mother’s Day.
Notwithstanding these Orders the children will spend time with the Father from 12:00pm to 6:00pm each Father’s Day.
Notwithstanding these Orders, if the Mother’s birthday falls on a day when the children would otherwise be living with the Father, the following Orders apply:
(a)If the Mother’s birthday falls on a weekday, the Father shall take all reasonable steps to make the children available to spend time with the Mother for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4:00pm to 7:00pm on her birthday;
(b)If the Mother’s birthday falls on a weekend, the Father shall take all reasonable steps to make the children available to spend time with the Mother as agreed, but failing such agreement from 12:00pm to 7:00pm on her birthday.
Notwithstanding these Orders, if the children are in the care of the Father on the birthdays of their siblings, [A] born [omitted] and [B] born [omitted] and step-father [first name omitted] born [omitted], then the following Orders shall apply, unless otherwise agreed in writing:
(a)That if the sibling or stepfather’s birthday falls on aw eek day, the Father shall take all reasonable steps to ensure that the children spend time with their siblings or stepfather having the birthday for a period of at least there hours at a time to be agreed between the parties but failing such agreement from 4:00pm until 7:00pm; and
(b)That if the sibling and stepfather’s birthday falls on a weekend, the Father shall take all reasonable steps to ensure that the children spend time with the sibling and stepfather having the birthday from 12:00pm until 5:00pm on the birthday.
Authorities
The Mother shall, if necessary, provide her consent to the children’s school principals and providers of extra curricular activities (“service providers”), so as to permit information about the children’s activities and events such as school newsletter and pamphlets, to be provided direct to the Father, at his cost if any, should the Father request such information from those service providers. The information to which the Mother’s consent relates shall not include information relating to the Mother’s interaction with or relationship with those service providers, including her correspondence to or from those service providers.
Communication
The parties communicate by email unless in the case of an emergency in which case they shall telephone or text the other parent.
To facilitate compliance with the above Order, the parties shall keep the other informed of their email address.
IT IS NOTED that publication of this judgment under the pseudonym Tappan & Perkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1337 of 2009
| MR TAPPAN |
Applicant
And
| MS PERKINS |
Respondent
REASONS FOR JUDGMENT
A. Introduction
In the Judeo-Christian tradition, the Psalms play a central role. The 150 psalms are typically divided into those which are prayers of supplication, songs of praise, psalms prayed by pilgrims en route to Jerusalem (known as psalms of ascent), psalms seeking protection, psalms of thanksgiving, and psalms of lament – individual and communal.[1]
[1] Sometimes advocates adopt arguments that can be similarly styled: thus, to supplicate the Court for orders, to seek orders that are protective of children and or their client, even occasionally to seek to engage in some faint praise of authority that might engender some more favourable reception of submissions.
If these reasons were to be so categorised, they would simply but overwhelmingly be described as a lament. Leaving to one side that “religion” was a formal issue of contest between the parties, why such a categorisation is apt I explain in the course of what follows.
Essentially, there is only one question to be addressed by the Court: what time should [X] (who is almost 14 years old) and [Y] (who is going on 10 years old) (“the girls”) spend with their Father,
Mr Tappan? There is no issue or contest over them continuing to live with their Mother, Ms Perkins. The children have expressed a very strong wish – as recorded by the Family Consultant - to spend more time with Mr Tappan.[2] There are various related issues but they are, in my view, almost all variations on this basic question of how much time the girls spend with their Father, and the concomitant logistical issues of where and how the time spent occurs.
[2] Cf. s.60CC(3)(a) & s.60CD Family Law Act1975 (“the Act”).
According to a relatively systematic program that, to some degree, is dictated by physiological development, from time to time [X] requires significant reconstructive facial surgery. She has already endured surgery. It is more than arguable that events surrounding her stay in hospital in Adelaide last year for this purpose, which was understandably traumatic (on many fronts) for both parents (and others too), was the singular event – and its sequelæ – that ultimately, and unfortunately, prompted the current litigation.[3]
[3] Given that the parties separated in 2002, the stay in hospital and its aftermath clearly come within the ambit of s.60CC(4A).
In written submissions that were provided after the attenuated hearing, Counsel for Mr Tappan identified four (4) specific issues for determination. They are:
(a)Whether the Father should have only half school holidays with his daughters (as sought by Ms Perkins) or the majority of them?
(b)Whether the Father should spend time with the girls for one night close to his and their birthdays or only three hours (as proposed by their Mother, Ms Perkins)?
(c)Whether Order 3 of the Mother’s Minutes regarding Church [attendance] should be “imposed” (to speak somewhat colloquially) on the Father?
(d)Whether the children should be allowed to travel with their Father to Europe for a holiday in September of this year.
Also in written submissions that were received after the abbreviated hearing, Counsel for the Mother identified seven (7) issues for determination. Quite a number of them overlap with those identified by the Applicant Father.
The issues for determination according to Ms Perkins are:
(a)Time to be spent with the Father in school holidays and definition of school holidays.
(b)Specific provision for time to be spent at Christmas and Easter.
(c)Time to be spent with each parent on the birthdays of the children, the Father, the Mother, her partner and their children.
(d)Telephone contact.
(e)Attendance at “Sunday School.”
(f)Communication.
(g)Holiday in Europe.
Thus, as I have already noted, all issues listed above – with the exception of “Sunday School” – relate essentially to aspects of the time the girls spend with their Father. I should also note that a number of other matters, including equal shared parental responsibility, were agreed at the shortened trial.
B. Evidentiary & Other Matters
Some formal matters should be noted before proceeding further. First, a very experienced Family Consultant, Ms Willetts, produced a Report, dated 24th December 2009. It was released to the parties on
11th January 2010. On the basis of the principles articulated by Warnick J in SPS & PLS,[4] at the very least, it may be reasonably inferred that the Report was (a) relied upon by the parties and (b) constituted evidence in the proceedings.
[4] (2008) FLC¶93-363 especially at [7] – [19].
Secondly, Ms Willetts gave some oral evidence in the course of the brief hearing.
Thirdly, in part because of the shortened nature of the proceedings, and doubtless also because of the quite limited range of issues to be determined, there was neither address during the trial, nor in the later written submissions, of the famed “legislative pathway.” I do not say this critically of anyone involved in these proceedings. In the course of what follows, I make occasional reference to relevant sections of Part VII of the Act.
However, for the sake of context and principle, I adopt, respectfully, Brown J’s statements of the binary statutory responsibilities of the Court in Mazorski v Albright,[5] at [3] – [6]. For ease of reference I set out those paragraphs from her Honour’s judgment, generally known as her “twin pillars” statements of principle. Of course, her Honour dealt with other matters also.[6] Brown J said:
3. The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
4. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
5. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
6. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[5] (2008) 37 Fam LR 518.
[6] Brown J was, of course, providing a helpful summary of matters that had been articulated by the Full Court in other decisions. In particular, see Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and Keach & Keach, (2007) FLC ¶93-353 at [24] ff.
In what follows, I proceed by (a) setting out, very briefly, some historical background, (b) considering Ms Willetts’ evidence (primarily from her Report), and (c) then addressing the outstanding questions to be determined.
C. Historical Context
The parties commenced cohabitation in 1996, the year in which [X] was born. They married in 1999. In 2000, [Y] was born. The parties separated in 2002. In May of that year, Consent Orders were entered in relation to the children. In February 2003, Consent Orders were made in relation to property.
In October 2006, Ms Perkins married Mr B. They now have two young children, [A] (who was born in 2006) and [B] (who was born in 2009).
Mr Tappan conducts a business in [C]and also has a residence in [G].[7] He says that he has significant flexibility in his work commitments.
[7] Cf. s.60CC(3)(e).
In August 2009, Mr Tappan filed an Application to Vary Parenting Orders. A Response to that Application was filed in September 2009.
In the light of this very brief chronology, it may be observed that between separation in 2002 and the filing of an Application in late 2009, the parents have been able to negotiate all relevant matters pertaining to the children and to do so without the need for Court intervention. In my view, this is a very important consideration.
This is also to say that, accepting that there have doubtless been some difficulties from time to time, both parents have demonstrated a firm resolve and significant commitment neither to embroil the children in any contest between them, nor to engage Courts (or lawyers to any significant degree – so it would appear) to resolve any parenting issues. Clearly they have exhibited the capacity to put the interests of the children first and to resolve issues, as they have arisen, using their best endeavours and whatever non-judicial resources were required.[8] They are to be commended, to a very significant degree, for their co-operation and resolution in this regard.
[8] Cf. s.60CC(3)(c) & (i), and s.60CC(4).
Precisely because they have been able to resolve matters regarding the children for such a long period of time makes the intervention of the Court now such a cause for regret – and to lament this turn of circumstances.
The Family Consultant made this very point in her Report. At par.6.1, she said:[9]
An arrangement that minimises the interparental conflict would be the best for the children. In the event that the matter proceeds to determination by the Court it is most likely that the parents’ relationship will be further worsened and this is particularly unfortunate considering these parents have been able to resolve issues between themselves in the past and thus the children have maintained a positive and meaningful relationship with their parents, their step-father and their siblings.
[9] Ms Willetts’ comments are directly relevant, among other things, to the meaningful relationship that both girls have with both parents. In this regard I simply note the statutory provisions to which I must have regard in relation to such matters: s.60B(1)(a), s.60CC(2)(a), and s.60CC(3)(b). See also Brown J’s discussion of “the concept of a meaningful relationship” in Mazorski v Albright (2008) 37 Fam LR 518 at [20] - [26].
Put shortly, it may quite strongly be inferred that these are very good parents: hence the deep regret that resort to litigation has been considered necessary at so late a stage in the lives of the girls, [X] and [Y]. Clearly, in a matter of a very short number of years, they will, so to speak, start ‘to vote with their feet’ even more deliberately and clearly as to their wishes. Feuding parents, embroiled in litigation cannot aid – short, medium or long-term – the well-being of anyone concerned, least of all the girls.
Should it be necessary, the Amended Minute of Orders sought by both parties should be taken to be formally incorporated into these reasons.
D. The Family Report
An obvious but nonetheless important point is made by Ms Willetts when she states in her Report, at par.5.3:
In considering what is in the children’s best interests regarding the two arrangements proposed by each parent, it would be useful to consider which arrangement will be least disruptive for the children in all areas of their life – school, peer relationships, sibling and family relationships, etc.
Ms Willets also noted some of the main concerns of the parents with the proposals of the other parent. From the Father’s side, his primary concern is that he does not wish to be a “holiday Dad”. He is also concerned that Ms Perkins’ proposal minimises and negates his role.
For her part, Ms Perkins’ concerns relate to the Father’s proposal being too disruptive to the stability and routines of the girls, not least being their capacity to participate in after-school activities.
Ms Willetts observed that in relation to the Father’s concerns, studies show that there is not a linear relationship between the time spent and the quality of the relationship. This is to say that an increase in time does not ineluctably or inevitably translate into a corresponding increase in the quality of the relationship. This might especially be the case where, as here, there is no issue that the girls have a very good relationship with their Father.
There was also a critique of Ms Perkins’ concern. Ms Willetts’ rightly said that it could be too simplistic a view because, ultimately, after-school activities, and indeed all arrangements for the girls, will invariably depend on the capacity of both parents to manage arrangements which put the girls’ interests first, and ensures that whatever conflict exists between the parents is managed responsibly and they avoid, or at least seek to minimise, its potential negative impact on the girls.
E. Resolution of Issues
Before dealing with the specific issues to be determined, a few other observations should be made.
First, I have already noted that the hearing was unfortunately attenuated. This was, in part, because of other listings and, in turn, because of the limited time available. This had the consequence that little of the evidence was formally tested, and indeed, no one, apart from Ms Willetts, gave any evidence at the trial. Thus, it was (and is) almost impossible to make any formal findings, except to note that, notwithstanding sustained cross-examination, in my view there was nothing to alter the clear observations made by Ms Willetts in her Report.[10]
[10] I have already noted that a number of issues were agreed between the parties in the course of the brief hearing, such as an order for equal shared parental responsibility. Such an order will be made.
Secondly, also as already noted a number of times, the nature and the scope of issues for determination was, and remains, very limited and very narrow. This too militated, to some degree, the amount of Court-time available/allotted to hear and determine the few issues to be resolved.
Thirdly, and somewhat acutely, we come to the aspect of “lament.” At the commencement of the trial I commented at some length on the enormous volume of material presented in the affidavits presented to the Court. I said then and confirm now my very strong view that the volume and nature of the material filed was disproportionate to the nature and number of issues to be resolved.
If a critical aspect of advocacy is to assist and to persuade the Court,[11] I remain unconvinced of the need to file affidavits of such enormous volume as were filed in these proceedings. As I said during the trial, when such material is filed, often it tells me more about the person swearing the affidavit, and also sometimes something about the prudential judgments made by lawyers, as to what should, or should not, be put before the Court, more so than about the party on the ‘other side.’[12]
[11] For a recent, helpful discussion of the art of advocacy, see the collection of papers and essays in J.T. Gleeson SC & R.C.A. Higgins, Rediscovering Rhetoric: Law, Language and the Practice of Persuasion (Sydney: The Federation Press, 2008). Most of the addresses and papers in this collection (especially those in Parts 1 & 2), in my view, should be required reading for all practitioners – whatever the jurisdiction in which they practice – at least as part of their continuing legal education. Early in this important volume, the editors record a remark from the Honourable Michael McHugh to the effect that when he was at the Bar in Sydney (before his later elevation to the NSW Court of Appeal and later to the High Court) he often consulted Aristotle’s Rhetoric to refresh himself in the techniques available to the advocate. Ibid., p.xi. It is not immediately apparent that this practice has been universally, or even occasionally, adopted by practitioners in more recent times.
[12] In his typically detailed paper, Heydon J stated: “Those who wish to persuade seek to influence their hearers or readers to hold a particular opinion. Forensic advocacy is a form of persuasion directed to a particular audience. In one central meaning, forensic “rhetoric”, like other types of rhetoric, is the art of using language so as to persuade others.” Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, op. cit., p.217. Emphasis added.
In this particular case, it was obviously felt necessary to include absolutely every, minute piece of information to ensure that the Court had the fullest, most complete picture of all relevant circumstances. Alas, as an exercise in assisting the Court, both the volume and the detail assisted very little. Indeed, as was more often than not the case here, the mere agglomeration of factual material was simply that – an agglomeration.
To speak generally, and by way of general lament, in addition to cases increasingly being conducted essentially via bombardment by, or salvos of, affidavits (both as to volume and as to number), in terms of supposed advocacy, more and more matters are conducted solely on the basis of “opposition” to the orders sought by the other party. Simply to oppose orders is, however, a rather banal form of advocacy. Indeed, it is not advocacy at all. Opposition is self-evident from the fact that the parties have come to Court. The emphasis should be on persuading the Court by relevant argument rather than providing blanket, unthinking, unyielding declamations of opposition. In an admittedly different (but related) context, Heydon J has referred to the modern practice of submissions in fact now [often] being “languid, rambling and lengthy debates.”[13] Respectfully, I agree with his Honour’s direct observations.
[13] Ibid., p.222. In particular, see that section of his Honour’s paper, headed “Some conditions and techniques of effective advocacy”, at pp.224 ff.
Returning to the current proceedings, at the trial I also commented on the terrible costs that doubtless would have been incurred by both parties in these proceedings, a significant portion of which would have been incurred in the preparation of the extraordinarily long primary affidavits. It was deeply regrettable that, after resolution of obviously so many things without Court intervention in the previous years, Court intervention was regarded as necessary now. Having such vast amounts of material prepared for such a small number of issues struck me then, and strikes me now, as desperately unfortunate.
Indeed, my views in this regard are neither boutique nor unique. For example, in his recent retirement speech, Warnick J said: “… there is something essentially tragic about good people incurring often ruinous fees for litigation, arising from nothing more than a divergence in personal lives and the issues to which that can give rise.” Respectfully, I agree with his Honour’s comments.
I repeat what I said during the brief trial: the volume of material provided to the Court was significantly disproportionate to the range and nature of the issues to be resolved. In my view also, some of the written submissions were also disproportionately long compared to the issues to be resolved. It is, perhaps, more likely than not that the costs incurred generally would have been significantly disproportionate to the range and nature of the issues to be determined. Given the history and the capacity of the parents, it should have been resolved without judicial intervention.
For the above reasons, and one or two noted below, the description of these reasons as a “lament” is, unfortunately, apt.
I turn to the determination of the issues. I will not necessarily deal with them in the order presented in the submissions. Before doing so, I note again the girls’ clear expression to Ms Willetts of their clear wish to spend more time with their Father. Given their ages, their wishes should be given reasonable, if not reasonably significant, weight.[14]
[14] Among other cases relating to “children’s wishes/views”, see R and R: Children’s Wishes (2000) 25 Fam LR 712; In the Marriage of R (Children’s Wishes) (2002) FLC ¶93-108, and P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179.
Overseas Holiday: An overseas holiday with their Father cannot but be a source of excitement and a memorable experience – and much more besides. Doubtless the same would be true if they were to holiday overseas with their Mother. Appropriate “make-up” time should be accorded. In short, the overseas trip should be permitted as sought by Mr Tappan. Two observations should be made, nonetheless.
First, in written submissions on behalf of Ms Perkins, one point of contention raised was to question why a trip in September was felt necessary rather than in the December/January school holidays. It is not suggested by Mr Tappan that the holiday is intended to be a skiing holiday. Absent that intention, to state the obvious, half of Europe is closed in December/January for the winter vacation – hardly a proposition that would thrill young girls, one would usually think. And even if the girls might miss some school in a September trip, it seems to me that its potential benefits outweigh any potential detriments.
Secondly, in relation to “make-up” time, I am conscious that neither party seeks to disturb the current and on-going arrangement whereby the girls live with their Mother. This is simply to note that, while there is a distinction of sorts between school time and holiday time, nonetheless Ms Perkins has the benefit of the girls living in her household for manifestly longer periods of time than does Mr Tappan. In my view, in such circumstances, a resident parent cannot seek, as a matter of course, a mathematically precise or absolutely equivalent compensatory period for the time that the girls spend with their Father on an overseas holiday. A greater degree of flexibility must be adopted, and better prudential judgments must be made – as they were in the past between these parents. Indeed, I understand that Mr Tappan has offered some compensatory time in relation to the European holiday.[15]
[15] There is, perhaps, a logical perversity in making orders for compensatory time for the parent with whom the girls live most of the time!
The girls are growing up quickly. The parents have to decide whether they will spend significant parts of their lives fighting (and paying lawyers), or enjoying such time with their children as they can.
I am also conscious of the different household of Ms Perkins and her two younger children. It is important, as was argued, that the girls spend time with their younger siblings.[16] However, this already occurs as they all live in the one household on a daily basis. As previously mentioned, I also accept, up to a point, that there is some difference in “time” during school term and “time” during school holidays.
[16] Cf. s.60CC(3)(b)(ii).
At the same time, and it is no criticism of Ms Perkins (nor could it ever be), the begetting of other children ([A] and [B]) was her choice and that of Mr B. Those choices should not, of themselves, be a cause for withholding or unnecessarily or inappropriately circumscribing the time the older girls – [X] and [Y] - spend with their Father, particularly when it is somewhat limited already.
In short, provided that all of the usual detailed itinerary information is made available to Ms Perkins well in advance of the trip, [X] and [Y] should be permitted to travel overseas in September this year with their Father. Some “make-up” holiday time with their Mother should be provided, but it should not necessarily be an exact equivalent of the duration of the European holiday. I stress that some flexibility and common-sense prudential judgments need to apply here – rather than a strict ‘eye for an eye’ approach. And, should it need to be mentioned, the hallmark of good parenting is “sacrifice”, which is in the best interests of the girls.
Religious Observance: A child’s ‘religious upbringing’ is a major long-term issue under s.4(1) of the Act. Mr Tappan deposed to having no opposition to, indeed that he was supportive of, the girls being raised in the Catholic tradition. [X] currently attends [D] School. I understand that it is proposed that [Y] will join her sister at that school in 2012. [D] is a Catholic school.
However, as supportive as he is of them being raised in this religious tradition, it is suggested that if the girls are in his care on a Sunday, he does not ensure their attendance at the usual Sunday Catholic observance known as the Mass or Eucharist. More generically, this has been referred to in some submissions as attending “Sunday School.”
As a matter of consistency, if the girls attend Mass and other significant liturgical or religious occasions (such as Baptisms and the like) when ordinarily resident with Ms Perkins, and Mr Tappan is supportive of them being raised in the Catholic tradition, unless there are exceptional circumstances, when in his care they should likewise attend Mass and any other usual religious occasion.
This religious observance would not require them to attend the same Church which they would usually attend when with their Mother. However, it would require them to fulfil what is described in the Decalogue (or Ten Commandments) as ‘keeping holy the Sabbath day’ by attendance at Mass at any conveniently located Catholic Church.
An order that resembles Order 3 in Ms Perkins’ Minute of Orders Sought will be made. I would suggest that it read something to the following effect: “The Father will facilitate [X]’s and [Y]’s usual attendance at any weekly Sunday religious observance, or other usual religious observance, whenever they are in his care.”
I note that, helpfully, Mr Tappan has offered that Ms Perkins have the girls for the Easter holidays, without exception. An order to this effect will be made.
Telephone Time: It would appear that there is no opposition to Order 4 in the Amended Minute of the Orders Sought by Ms Perkins in relation to telephone communication between the girls and their Father. Such an order will be made. However, in my view, it too should be qualified further, given the ages of the girls, so that [X] or [Y] may telephone the parent with whom they are not residing at any reasonable time.
School Holiday Time: The issue here is whether the girls should spend half of each school holidays with their Father, or a longer period, which is what Mr Tappan seeks. In fact, Mr Tappan seeks all the school holidays only in relation to the holidays at the end of Terms 1 & 3. Each of them is only of two weeks duration.
Given that [Y] has not yet commenced high school at [D] School (she will do so in 2012), there is also an issue about the commencement and or duration of holidays because the [D] School holidays usually commence one week earlier than other schools.
It may be observed that, given the disparate ages of all the children involved here ([X], [Y], [A] and [B]), and their attendant scholastic and extra-curricula activities, it is highly likely that they will never be completely synchronous, thereby requiring even greater flexibility and sacrifice on the part of all parents involved.
Some congruence of time will occur when [Y] commences high school in 2012. Until then, it seems to be an exercise in nit-picking to require [X]’s time with her Father to be conditioned by [Y]’s school holidays. Indeed, given his already somewhat limited time with the girls, it would be helpful to encourage any extra time the girls can spend with their Father rather than be concerned about any time encroaching on Ms Perkins’ time, especially given, as I have said a number of times already, that the girls otherwise live with her “24/7”, and especially given the clear expression of the girls’ wish to spend more time with their Father.[17]
[17] Generally, see the important discussions regarding “children’s views” in P. Parkinson & J. Cashmore, The Voice of the Child in Family Law Disputes, (Oxford: Oxford University Press, 2008).
In the absence of, and subject to, agreement between the parties in writing, orders should be made whereby Mr Tappan has the children for approximately two-thirds of the holidays he seeks rather than for the whole holidays. Accordingly, the girls will spend time with their Father from after school on the last Friday of the term until 5:00pm on the last Wednesday of the school holidays.
I also prefer Order 3 of Mr Tappan’s Amended Minute of Orders Sought in relation to Christmas Holidays. It will be so ordered. They will be qualified by including Order 12 from Ms Perkins’ Amended Minute of Orders in relation to Christmas and Boxing Days.
Birthdays & Other Special Days: Accepting that Mr Tappan usually lives quite some distance from Canberra, in my view, his proposed order 5 in his Amended Minute is, in my view, appropriate. In the absence of agreement between the parties, his proposed order 6, in its current form, in my view, is not. It would have the effect of providing three extra days of time for which there is no other usual provision.
For Mother’s and Father’s Days, in the absence of agreement between the parties in writing, the children shall spend from 12 noon until 6pm with the parent whose “special day” it is.
In relation to Ms Perkins’ birthday, in the absence of written agreement between the parties, order 9 of her Amended Minute of Orders shall apply.
In relation to other birthdays, order 10 of Ms Perkins’ Amended Minute of Orders shall apply.
Other Matters: Any authority that is required to ensure that Mr Tappan is provided with all relevant school notices, newsletters and reports relating to the girls, shall be provided by Ms Perkins.
Communication between the parties shall be by way of email, unless some other form of communication is otherwise agreed between the parties, and subject always to any emergency. The parties are to ensure that they have provided the other parent with an up to date email address.
Finally, in relation to any future dispute(s), without making a formal order, I would strongly suggest that, before any application is filed, the parties should attend child-inclusive mediation.
Conclusion
In the essays on rhetoric and advocacy to which I have referred earlier in these reasons, there are regular references to the great Roman orator and senator, Cicero. In Cicero’s work, De Officiis (On Duties) at one stage he recounts a range of virtues required of statesmen who are responsible for enacting laws for the good of the community. Leaving aside various details, among those virtues are “greatness of spirit”, which necessarily involves the ‘cardinal virtue’ of fortitude.[18]
[18] In other judgments I have discussed at greater length various other virtues that are relevant to parenting. See, for example, Monds & Mullan [2009] FMCAfam 58.
It seems to me that both these virtues are fundamental to all parents, and especially so to [X]’s and [Y]’s parents. To face the present, to put aside (as best they can) difficulties of the past, and to face the issues of the future (not least [X]’s imminent and on-going surgery), both parents will need “greatness of spirit” (as opposed to the vice of meanness of spirit), and significant fortitude or courage.
May these, and other important, virtues take the place of litigation in pursuing what is in the best interests of [X] and [Y].
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: M Allen
Date: 31 May 2010
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