Taroopna and Taroopna
[2018] FamCA 804
•5 October 2018
FAMILY COURT OF AUSTRALIA
| TAROOPNA & TAROOPNA | [2018] FamCA 804 |
| |||||
| APPLICANT: | Ms Taroopna | ||||
| RESPONDENT: | Mr Taroopna |
| FILE NUMBER: | PAC | 978 | of | 2015 |
| DATE DELIVERED: | 5 October 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 4 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | A B Mezzanotte Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Gibson Howlin Lawyers |
Orders
THE COURT NOTES
A.On 4 July 2018 an order was made for both parties to have equal shared parental responsibility for the child.
THE COURT ORDERS
That the child B (“the child”) born … 2012 live with the mother.
That the father spend time with the child at all times as may be agreed, but failing agreement, as follows:
(a) Week 1: from the conclusion of school on Thursday, until the commencement of school the following Monday;
(b) Week 2: from the conclusion of school on Thursday, until the commencement of school the following Friday;
(c) That, except for the extended Christmas holiday period, the child spend time with the father for one half of all school holiday periods, being the first half in even numbered years and in alternate years thereafter and the second half in odd numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods;
(d) That in all odd numbered years:
(i)The child spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii)That the child spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day;
(e) That in all even numbered years:
(i)The child spend time with the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii)The child spend time with the father from 12 noon Christmas Day until 12 noon Boxing Day.
(f) That, subject to Orders 3(d) and 3 (e), for the extended Christmas school holidays the child spend time with each parent on a week about basis as agreed. Failing agreement the child shall spend the first week with the father in even numbered years and in alternate years thereafter and the second half in odd numbered years and in alternate years thereafter.
That, except for the extended Christmas holiday period, the child spend time with the mother for one half of all school holiday periods, being the second half in even numbered years and in alternate years thereafter and the first half in odd numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods.
That, subject to Orders 3(d) and 3(e), for the extended Christmas school holidays the child spend time with each parent on a week about basis as agreed. Failing agreement the child shall spend the second week with the mother in even numbered years and in alternate years thereafter and the first half in odd numbered years and in alternate years thereafter.
That the child spend time with the father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
That the child spend time with the mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.
That unless otherwise agreed, the father shall be responsible for collecting the child from school at the beginning of his time with the child and returning the child to school at the end of the child’s time with the father.
That during other times, unless otherwise agreed, the father shall be responsible for collecting the child from the mother’s home at the beginning of his time with the child and the mother shall be responsible for collecting the child from the father’s home at the end of the child’s time with the father.
That each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the child.
That the parties encourage and not undermine each child’s relationship with the other party.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taroopna & Taroopna has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC978/2015
| Ms Taroopna |
Applicant
And
| Mr Taroopna |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the long term parenting arrangements in respect of a six year old boy, B (“the child”) the only child of the mother and the father.
The parties separated in September 2012 when the child was only four months old.
The parties have agreed to equally share parental responsibility for the child and accordingly an order in these terms was made in the course of the hearing.
The only matter for the court to determine is whether it is in the best interests of the child to live in an equal time arrangement as sought by the father or to live with the mother and spend significant and substantial time with the father as sought by the mother.
Background
The parties who are both 39 met in 2006 and married in 2007.
In 2012 the parties’ only child was born.
Shortly before the birth of the child the mother stopped working so that she could remain home to care for the child as had been agreed between the parties. Since the child’s birth she has been the child’s primary caregiver.
The father took three months paternity leave following the birth of the child to assist with the child’s care.
The parties’ relationship broke down in September 2012 when the child was four months old and the parties’ separated on a final basis. The father left the family home where the mother remained living with the child.
Following separation the child spent one night a week and two hours each Wednesday with the father.
The father re-partnered shortly after the parents separated. The father and his partner (“the father’s wife”) married in 2016. They had a child who is also a boy in 2017 (“the father’s second child”). The father’s wife is currently pregnant with twins.
The mother re-partnered in about 2015. The mother and her partner do not currently live together and have no children together.
In March 2015 the mother filed an Initiating Application seeking property orders and in June 2015 the Father filed a Response in which he also sought orders in relation to parenting.
In June 2016 the father filed an Amended Response and an Application in a Case seeking parenting orders that would see the parties have equal shared parental responsibility for the child, the child live with the parties in a week about arrangement and the child be enrolled at a particular private school. By this time the father had moved to a home about 31 kilometres from the mother’s home. The school he then proposed that the child attend is about 30 kilometres from both his home and the mother’s home.
The mother filed a Reply seeking that she have sole parental responsibility for the child that the child live with her and spend two nights per fortnight with the father prior to commencing school and once at school this would increase to three nights per fortnight and half of school holidays.
The parties were interviewed by a Family Consultant in October 2016 for the purpose of the Child Responsive Program.
In November 2016 the court made interim orders with the consent of the parties that the child spend two nights each fortnight and some after school time with the father and communicate with him by telephone three nights each week.
In December 2016 there was a further interim hearing before a Senior Registrar to determine the issue of which school or pre-school the child would attend in 2017. The father’s application for the child to attend the particular private school was dismissed.
The child began attending a pre-school a short distance from the mother’s home at the commencement of the school year in 2017. He moved to the kindergarten class at the same school at the start of 2018.
On 1 May 2017 the family were interviewed by an expert (“the expert”) for the purposes of preparing a report to be used in resolution of the proceedings.
Later in May 2017 further interim orders were made that the child live with the mother and spend time with the father from Thursday to Sunday in one week of a two week cycle and on Thursday overnight in the alternate week in the second week as well as half of school holidays.
The expert’s report was released in July 2017.
In December 2017 the property proceedings were resolved by orders made with the consent of the parties.
At the conclusion of the final hearing an order was made that the parents have equal shared parental responsibility for the child.
The only issue for the court to determine is whether the child should live primarily with the mother and, if so, what the arrangement should be for him to spend time with the father, or whether he should live equally with both parents.
In terms of the orders sought the mother shifted her position a little in the course of the final hearing as a result of additional evidence that came to light in the course of cross-examination. Currently the parenting arrangement is that the child lives with the mother and spends four nights each fortnight and half school holidays with the father. The mother had proposed at the commencement of the hearing that the child’s time with the father be increased to five nights per fortnight but in the course of the proceedings she proposed that the current arrangement remain in place for around 12 months and then increase to five nights per fortnight from the commencement of the third school term in 2019. The father has at all times sought orders that the child live equally with both parents.
The matters in dispute
The father’s domestic circumstances
The father contends that an equal shared care arrangement for the child is both in the child’s best interests and reasonably practicable. It is the mother’s contention that this pattern of care raises considerable practical issues due to the distance between the father’s home and the child’s school, the father’s domestic arrangements and his work commitments.
These contentions entail some disputed matters of fact that require resolution.
According to the father’s proposed orders changeover of care from one parent to the other will occur on Friday afternoon at the end of the school day. Accordingly the father proposes that he will take the child to and from school each day each alternate week during the school term when the child is living with him.
According to the father’s affidavit the father, his wife and the father’s second child live in a six bedroom home approximately 31 kilometres from the child’s school. He deposes that there is about 25 to 30 minutes driving time for this journey. The father also deposes that the driving time between his home and the mother’s home also takes 30 minutes.
The father describes himself as being employed as an operations director with a company of which he states he is “also a part owner” which provides him with the ability to work flexible hours and work from home.
The father provides little detail concerning his business arrangements in his affidavit except to say that he has an office in a suburb in Sydney, approximately 30 kilometres from his home and 30 kilometres from the child’s school, where he works on average two days a week for four to five hours per day. He deposes to also having a home office in which he works a number of hours per day which means he is available to collect and drop off the child at the commencement and conclusion of time he spends with him. He also deposes that it is likely in the future “say within the next year or two” that he will return to the business on a full time basis but maintains that he will continue a flexible work arrangement when this occurs. The father does not set out in his affidavit what he means by a flexible working arrangement nor any details of the hours each day that he actually works.
The father deposes that due to his flexible working arrangements he commonly works from home and will be available to collect the child and drop him off at school or at the mother’s home under an equal shared care arrangement “as required”. The father deposes that to date the mother has refused to allow his wife to pick up or drop off the child but he has been able to manage changeover given the flexibility in his working arrangements. He deposes however that it is possible that there may come a time in the future where he requires his wife’s assistance with transporting the child.
In another part of his affidavit that deals with practical aspects of an equal time arrangement, the father deposes that his proposal provides for little disruption to the child and in particular asserts that the child has become accustomed to travelling the distance from the his home to the child’s school. Under the current arrangement the child is required to travel this distance on five occasions per fortnight. The father describes the car journey to and from school (which he maintains takes 25 to 30 minutes) as a “wonderful time” and an “intimate time” with [the child]. He deposes that his home, the mother’s home, the child’s school and his work are in “close proximity”.
The father’s wife’s affidavit is in similar terms. She also refers to the birth of her first child with the father in 2017 and being on maternity leave at the time of affirming her affidavit.
In a similar fashion to the father’s affidavit the father’s wife deposes that the father’s working schedule is very flexible and that he works from home. She says that for this reason she is rarely involved in transporting the child but would gladly do so to support the father and enable the child to spend more time with them if required.
Neither the father nor his wife give any suggestion in their respective affidavits that there are any other matters relating to their domestic circumstances or the father’s business or employment that are relevant to an assessment of the reasonable practicability of the father’s proposal.
The mother has always maintained that the father’s proposal is not reasonably practicable due to the distance between her home, the child’s school and the father’s home. She also calls into question the extent to which the father is involved in his business and challenges the degree of flexibility in his arrangements that he maintains.
There is no dispute between the parties that the school attended by the child is about eight kilometres from the mother’s home and that the father lives about 30 kilometres from the school. The mother does not depose to the time that she says it takes to travel either journey but under cross-examination says it varies depending upon the traffic. The mother gave evidence that she has not travelled between the father’s home and the child’s school at school time but has undertaken the journey between her home and the father’s home on a Sunday evening. She says that the journey at that time had not ever taken more than 45 minutes. In relation to the level of traffic at school hours the mother said that it takes her 15 minutes at this time to travel the short distance to the child’s school.
The mother says that currently the child’s school day starts at 8.20am though this may vary as the child progresses through school to starting ten minutes earlier and the current ending time of 2.40pm may also extend by a further ten minutes. Under cross-examination the mother said that any extra-curricular activities for the child are held at the school and occurred mainly after school.
The father deposes to the child being involved in various regular activities since separation and appears to suggest that these activities have taken place near his home. Under cross-examination however, it became apparent that the child is not participating in any activities near the father’s home. When asked what he envisaged in the future in relation to extra-curricular activities the father said that “it would be fine” for such activities to “take place-anywhere between my house and her [the mother]’s house”. When asked how it would be in the child’s best interest for him to be part of a sporting team anywhere between his parents homes the father said he would prefer that such activity were associated with the school or if not associated with the school he would be happy for it to be close to the mother’s house.
So far as the father’s business arrangements are concerned the mother deposes that he owns and conducts his own business. This was not challenged by the father. The mother also says that she has been informed that the father’s business has three offices, one located in the suburb about 30 kilometres from each parents’ home, a second office is in Brisbane but she was not aware of the location of the third office.
In oral testimony evidence concerning a number of matters relevant to the determination of the practicability of the father’s proposal came to light. First, although the father had only suggested in his affidavit that he had one office in a Sydney suburb and otherwise worked from home in cross-examination he confirmed that he also had one office in Brisbane and had recently opened a new office in a Sydney suburb a short distance from his home and a significant distance from the child’s school. It also came to light that the father was not merely an employee and part owner of the business but that he was the owner and operator of that that business. He also gave evidence that the business employed at least 68 employees.
It also came to light for the first time under cross-examination of the mother that she had been informed by the child that the father’s wife was expecting “a half-sister”. In answer to a question under cross-examination the father said that his next child was due in four and half months. In re-examination the father agreed that he had indicated under cross-examination that there would be two children [of himself and his wife] living in his home. The father then revealed for the first time that his wife was in fact expecting twins in about November 2018 (when their other child would be about 16 months old).
The tenor of the father’s evidence continued thereafter to be that he would have the available time to be actively involved in the child’s care and that the care requirements of three other young children was not of great consequence. However, he ultimately did concede that the care of three babies aged 16 months and under would involve a lot of work. To assist with this he said he had recently employed a full time nanny.
The affidavit of the father’s wife is also silent about her pregnancy. Under cross-examination she agreed that she was aware that the child had told his mother that she was expecting a child and when asked whether that was the whole story she conceded that she was expecting twins. The father’s wife also seemed reluctant to concede the extent of the caring requirements of her young family but said that a part time nanny had been employed for two days a week which would increase to three days per week. She said that the nanny may be available five days per week after the birth of the twins and said that she and the father would increase the nanny’s hours depending upon how they were coping.
The father’s wife had deposed in her affidavit to being on maternity leave which she said was due to finish in July 2018 but said in oral evidence that this would be extended for an additional year but she would not be paid during that time.
The father’s wife appeared to then suggest under cross-examination that she worked part time in her usual profession even though this was not referred to in her affidavit. However it came to light that she worked for the father in his business. The father’s wife claimed she had “a very casual role” in the business that had for example seen her work three days in the previous week. The father’s wife gave very vague evidence about details concerning her employment in the father’s business and claimed that she could not recall how much she earnt though she ultimately conceded it was something like $1000 per fortnight.
Details concerning the father’s financial matters also came to light for the first time under cross-examination. According to the father’s affidavit he and his wife and child lived in a property owned by the father’s wife. Although as noted the father provides very little information concerning the hours in which he is engaged in his business the tenor of his affidavit is that his wife makes a significant financial contribution working full time, being a position to which she will return after completing maternity leave which is to continue at least until July 2018. This is consistent with the information given by the father to the expert that when his wife returns to work after maternity leave he will stay home to care for the children and that their decision to arrange their family life this way is based on his wife’s greater earning capacity.
Under cross-examination the father agreed that in January 2017 when he filed a Response to the wife’s Application in a Case he was then seeking the sale of the former family home and in an affidavit filed at the time deposed to suffering from financial stress and being unable to afford the mortgage. Under cross-examination the father confirmed that the home in which he and his wife now live is in his wife’s name and he claimed that he did not make any contributions to the mortgage on that home. He maintained that his income is approximately $48,000 per year though he agreed that it fluctuated over time.
Discussion and findings
I am satisfied on the balance of probabilities that the father is significantly involved in his business. It is also more likely than not that although he may have some flexibility in his working hours and does undertake work from home he does not have the flexibility and time on his hands to be personally transporting the child to and from school or his extra-curricular activities on each school day for a block period of a week in each alternate week. In being so satisfied I attach weight to the complete absence or very vague evidence contained in the father’s affidavit about his actual working hours and the extent to which he is involved in his business. Further, it is of significance that he is the owner or part owner of the business that employs a large number of people and that he recently opened an office near to his home. I also have regard to his evidence that he earns a modest income through the business, has relatively recently suffered from financial stress and has until recent times relied on his wife’s income but she is not expected to return to work for at least another 12 months. He also did depose to an intention to return to full time work in the near future (albeit inconsistently with his evidence that he will stay at home and care for the children in the future).
I have some concerns that the father has not fully disclosed his financial circumstances and some difficulty in accepting that he earns such a modest income through a business that employs so many people. It is also unclear how his wife is able to pay the mortgage on a large home when she is currently on unpaid maternity leave and earning a small amount in his business. However, accepting his evidence concerning his current income, his wife’s usual income and their expected outgoings the only available inference is that the father is likely to be heavily engaged in his business in order to maximise the income he will require to meet the family expenses.
I am also satisfied that there will be a significant change in the father’s household from around November 2018 when he and his wife will have the care of three infants aged 16 months and under which will impose a weighty burden of day to day care for these children on the father and his wife. Ultimately, this finding is not hard to make as the father did concede in re-examination that this would be the case. In light of the evidence of the father that he and his wife had recently employed a full-time nanny (albeit that his evidence was inconsistent with that of his wife as to this matter) he does appear to accept that there is a significant difference between a household in which there is one other sibling and the circumstances which will soon arise when there will be three infants in the father’s household.
I also find that it is more likely than not that the journey between the father’s home and the child’s school takes more than 20 to 25 minutes at school time for the following reasons. Although the father deposes to the time taken to complete this journey as 25 to 30 minutes he agrees that he has not ever kept a log or timed the actual journey at school time. Further, he deposes that the driving time between his home and the mother’s home also takes 30 minutes but did not challenge the mother’s evidence that it takes her 15 minutes to travel the further short distance to the child’s school at school time. He also did not challenge the mother’s evidence that when she has undertaken the journey between her home and the his home on a Sunday evening without any traffic that the journey has taken up to 45 minutes.
Further, I am satisfied that the father’s wife is likely to return to full time work in about November 2019 for the following reasons. As noted it is the tenor of the father’s affidavit and the information that he gave to the expert that he and his wife have decided to arrange their family life on the basis that she has a greater earning capacity. He also agreed under cross-examination that as recently as January 2017 he was suffering from financial stress and that his current income is quite modest, being approximately $48,000 per year. The father and his wife also deposed to added expenses relating to the impending birth of their twins including the costs associated with employing a nanny.
In light of the foregoing findings I am satisfied that it is unlikely that the father will be able to transport the child to and from school each school day each alternate week given the likely time involved in the journey to school and the extent to which he is involved in the running of his business. I am satisfied that it is more likely than not that the father’s wife (who has significant other care responsibilities) or the nanny will be responsible for taking the child to and from school and his extra-curricular activities under the father’s proposal in the short term and that following the father’s wife’s return to work it is likely that the nanny will take up these responsibilities.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[1] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[1] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In these proceedings the presumption applies and each of the parties seeks an order for equal shared parental responsibility. As there is no dispute that such an order is in the best interest of the child that order was made in the course of the proceedings.
As an order was made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act, I must consider whether the child spending equal time with each of the parents would be in his best interests, and whether such an order is reasonably practicable. Such a parenting arrangement is also proposed by the father.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) 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.
The meaning of the phrase “meaningful relationship” is not defined in the Act but the Full Court[2] has approved the interpretation of the phrase as meaning a relationship which is “important” or “of consequence”.
[2] McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
The child in these proceedings has the benefit of having two loving and committed parents who have his best interests at heart. There are no allegations that the child is subjected or exposed to any abuse, neglect or family violence. There is a positive benefit to the child in having a meaningful relationship with both parents.
Each of the parties’ proposals would facilitate the child having a meaningful relationship with both parents.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
The child was only a few months old when his parents separated. The expert opined that the child has an attachment relationship to both parents. There also appears to be no doubt that the child enjoys a positive relationship with each of his parent’s partners, his half-brother and both the maternal and paternal extended families. These relationships will be fostered by either of the parenting arrangements proposed by the parties.
When interviewed by the expert in May 2017 the child expressed positive views of both his parents and their partners. At the time he was interviewed the child was spending only two nights a fortnight and some hours after school with his father and expressed a clear and unambiguous wish to the expert to spend more time with his father. In this regard the expert reported;
He did so directly and he did so less directly by, for example, his emphasising that he loves both of his parents equally. It is once again noted that [the child] confused the question of how much he loves his parents with how much time he should spend with each of them. That confusion was evident when he said that he loves his father a bit more. There was no evidence in anything else that he had to say or in the observations of him with each of his parents to suggest that his affection is actually directed more to one parent that the other and there is no doubt in this writer’s mind that he loves both of his parents to the same degree. It is far more likely that his comment reflects the state of affairs in which, because he spends considerably less time with this father that with husband is mother, he experiences a greater sense of longing in relation to his father.
Given the young age of the child I only place limited weight on his view except to the extent that it reflects on the positive nature of his relationship with both parents.
Since separation both parents have continued to participate in decision making regarding the child which will continue pursuant to the order that has been made with the their consent that they will equally share parental responsibility for the child in the future.
Following separation the child initially spent one night per week with the father which was increased to four nights a fortnight in May 2017 after the expert assessment but prior to the report being released. The father has been persistent since 2016 in seeking an equal time arrangement for the child.
Both the mother and the father are financially supporting the child. The father pays monthly child support to the mother, the parties’ share the child’s school tuition fees and both parties contribute to other financial expenses of the child.
The mother’s proposal will bring about no change in the child’s circumstances for 12 months and then a small increase of one night in the time he spends with his father. At the time the family consultant assessed the family the child was spending more limited time in his father’s care. The expert recommended that this be increased to five nights each fortnight during school term and equally shared in the school holidays. The expert’s recommendation of five nights per fortnight was adopted by the mother in her proposed orders though towards the end of the final hearing when additional evidence had come to light the mother proposed that the current arrangement continue for 12 months and then move to the child spending five nights per fortnight with the father.
In relation to her recommended arrangement for the child the expert opines;
[The child] is still a little boy so, notwithstanding his expressed wish to spend more time with his father, the adults need to recognise on his behalf that spending more time with his father also involves his being away from his mother for more time and that this could bring with it feelings of missing her. Therefore, while it is important for [the child] to spend more time with his father, the increases need to be managed gradually so as to protect him from the possibility of feeling overwhelmed.
The father’s proposal will bring about some significant changes for the child as he currently spends four nights per fortnight with the father which is proposed to increase to seven nights in the father’s care. This will result in the child spending seven nights away from his mother each alternate week which the expert opines could bring feelings of missing her. This may be especially so where the mother has to date been the child’s primary carer. I attach significant weight to this consideration.
I am of the view that there is some practical difficulty in the father’s proposal that the child live with him in an equal time arrangement given my findings about the extent of the father’s involvement in his business and the significant changes that will be brought about in the father’s household arising from the arrival of twins in a few months.
The father not only failed to disclose to the mother and the court in his evidence the significant difference in a household which contained one other young sibling and a household which is soon to contain three other young siblings. He failed to set out at all the practicalities and logistics of managing the care of the child for block periods of seven consecutive days. He had not considered the logistics of the child’s participation in extra-curricular activities. He ultimately conceded that these activities logically should take place either at school or closer to the mother’s home which raises the practical difficulty of the child’s participation some distance from the father’s home. This is in my view a weighty consideration when considering an equal time arrangement.
Each of the parents has demonstrated a capacity to provide for all of the child’s needs including emotional and intellectual needs. Their respective proposals did not initially proceed on the basis that either parent lacked capacity in the general sense to meet the child’s needs though it was submitted on behalf of the mother that the father and his wife’s capacity to meet the child’s needs in the changed circumstances of the impending arrival of twins is untested. As I understand it this concern and the need to take a cautious approach forms the basis of the mother’s changed position in seeking that the current parenting arrangement stay in place for the time being and not change for another 12 months. In this regard, although I am quite critical of the father in his failure to have informed the court of a number of relevant matters relating to his household there is no reason to suggest that he does not have the capacity to meet the child’s needs in the changed circumstances. All of the evidence and the expert’s opinion indicates that he and his wife are very capable parents. The concerns I had in relation to the changed circumstances in the father’s household relate more to practical and logistical matters than to parental capacity.
Each of the parents clearly love the child, and have a positive attitude toward him and the responsibilities of parenthood. There are no allegations of family violence made by either party in these proceedings.
Both the mother and father are born of parents who migrated to Australia from the Middle East. The child will receive the benefit of engagement in his cultural heritage and traditions through his relationships with both the maternal and paternal families.
In determining whether an equal time arrangement is in the best interests of the child significant weight in my view is to be attached to the opinion of the expert in her report of 18 July 2017. The expert who has tertiary qualifications in social work has extensive experience including around 25 years as a family consultant, in various family support and child protection agencies and in the psychiatry departments of various hospitals including a children’s hospital and with an adolescent service. The expert has been a guest lecturer at a university and has extensive professional experience in presenting at conferences and publishing articles to a range of audiences. The expert interviewed separately and observed the child with each of his parents and the father’s wife who was also interviewed both separately and jointly with the father. She had access to all of the affidavits filed in the proceedings at that date and the Child Responsive Program Memorandum. The expert was not required for cross-examination so there is no challenge to her expert opinion. Having regard to the absence of any challenge to the expert’s opinion together with her expertise and experience I accept her opinion and attach significant weight to it.
At the time of assessment with the expert the mother was then proposing that the child lived primarily with her and spend time with the father in a regime increasing to four nights a fortnight and half of the school holidays. The father was then proposing an equal shared care arrangement.
After having considered each of the matters relating to the best interests of the child the expert recommended that the child ultimately live with his mother nine nights per fortnight and with his father five nights per fortnight. She also suggested a particular pattern of care in which the child would spend three nights in the first week and two nights in the second week with the father. Although the mother was at that time proposing that the child live with the father slightly less she adopted the expert’s recommendation for the father to spend five nights per fortnight with the father in these proceedings.
At the end of the final hearing the mother proposed that this regime of care not commence until a date approximately 12 months in the future. This suggestion had not been considered by the expert. Although she recommended that the child’s time with the father gradually increase there is no reason to suggest that the expert contemplated that the recommended level of contact of five nights per fortnight would not be reached until more than two years after the release of her report. That being said, it is acknowledged that the expert was not aware of the impending changed circumstances in the father’s household but the father did not require her for cross-examination so that could have been considered by her.
Having regard to each of the best interests considerations as discussed and attaching weight to the nature of the child’s relationship with each parent, the likely effect of a change in the child’s circumstances and the practical difficulty involved in each of the proposals I am of the view that an equal time arrangement is not in the best interests of the child.
Reasonable practicability
Section 65DAA(1) of the Act requires that the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable and each of the parties approached the this issue in terms of both the child’s best interests and reasonable practicability. However, as I am of the view that an equal time arrangement is not in the best interests of the child it is not necessary to determine whether such an arrangement is reasonably practicable.
Substantial and significant time
Having considered an equal time arrangement I am then required to consider under s 65DAA(2) whether the child spending substantial and significant time with each of the parents would be in his best interests and reasonably practicable. In any event the proposal for the child to spend substantial and significant time with the father while maintaining his primary residence with his mother is the alternate proposal in these proceedings.
In proposing an order for equal time which requires a higher level of practicability than substantial and significant time, the father must be taken to accept that there are no impediments on this basis to the parenting arrangement proposed by the mother. Having regard to the mandatory matters when considering reasonable practicability under section 65DAA(5) of the Act, I am satisfied that the mother’s proposal that the child spend five nights per fortnight and half school holidays in the father’s care commencing in term three 2019 is reasonably practicable. I am also of the view that it would be reasonably practicable to implement such orders immediately.
The mother’s proposal that the orders she seeks commence in approximately 12 months’ time was not advanced on the basis of reasonable practicability but rather on the issue of best interests.
Although the mother was clearly taken by surprise in relation to the father’s evidence concerning the significant changes in his household that will soon come about due to the impending birth of twins, and I was also critical of the father in this regard, I am not of the view that this is of great significance in determining whether the orders she proposes commence immediately or in around 12 months’ time.
Having regard to each of the matters relating to the best interests of the child, attaching appropriate weight to them for the reasons given and noting the recommendation of the unchallenged evidence of the expert, I am satisfied that the mother’s proposed orders meet the best interests of the child on the basis that they are implemented immediately. In this regard I also accept the submission made on behalf of the father that it is likely to be the child’s best interests for the change in his circumstances to occur now and for him to be part of the household in which two half siblings are to born rather than delaying such an arrangement for a further 12 months. A delay in this arrangement may cause the child to feel excluded from the important changes in his paternal family.
I am also of the view that the pattern of the father’s time proposed by the mother which differs a little from that recommended by the expert is equally suitable for the child.
For these reasons I make the orders as set out in the forefront of this Judgment.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 5 October 2018.
Associate:
Date: 5 October 2018
Key Legal Topics
Areas of Law
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Family Law
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