TARYN & SINDALL
[2009] FMCAfam 1214
•19 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TARYN & SINDALL | [2009] FMCAfam 1214 |
| FAMILY LAW – Children – time children should spend with father. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DA, 65DAA, 65DAC |
| Applicant: | MS TARYN |
| Respondent: | MR SINDALL |
| File Number: | DGC 234 of 2008 |
| Judgment of: | Phipps FM |
| Hearing dates: | 12, 13, 14, 15, 16, 19, 20, 21, 22 & 23 October 2009 |
| Date of Last Submission: | 23 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Holmes |
| Solicitors for the Applicant: | Tyler Tipping & Woods |
| Counsel for the Respondent: | Mr St John S.C. with Mr Strum |
| Solicitors for the Respondent: | Richmond & Bennison |
| Counsel for the Independent Children’s Lawyer: | Ms M Stavrakakis |
| Solicitor for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
That the mother and the father have equal shared responsibility for the children, [X] born [in] 2005, and [Y] born [in] 2006.
That the children live with the mother.
That the children spend time with their father;
(a)Commencing immediately and until [Y’s birthday] 2009 each alternate weekend from Saturday at 10.00am until Sunday at 5.00pm and each Wednesday from 10.00am to 5.00pm;
(b)From [Y’s birthday] 2009 until May 2011 each alternate weekend from 9.00am Friday until 5.00pm Sunday and each alternate week from 9.00am Wednesday until 9.00am Thursday;
(c)From May 2011 each alternate weekend from Friday 5.00pm until 5.00pm Monday and each alternate Wednesday from 9.00am until 9.00am Thursday;
(d)During the first and second school term holidays 2010 the alternate weekend time is extended for one weekend to commence at 10.00am Thursday and end at 5.00pm Monday. If there is more than one alternate weekend time in a school term holiday, then the extension shall be on first alternate weekend time;
(e)From 1.00pm 25 December 2009 until 5.00pm 27 December 2009 and thereafter until the end of the 2009/2010 summer holidays the alternate weekend time is extended to conclude at 5.00pm on Monday;
(f)From third term 2010 half school term holidays as agreed and if not agreed the first half;
(g)Commencing December 2010 half summer holidays as agreed and if not agreed the first half in 2010/2011 and alternate years thereafter and the second half in 2011/2012 and alternate years thereafter;
(h)On Father's Day if not a time with weekend from 10.00am to 5.00pm;
(i)If Mother's day occurs during a time with weekend then the father’s time with the children is suspended from 10.00am to 5.00pm;
(j)Notwithstanding who the children are living with or spending time with otherwise;
(i)
the children shall spend time with the father from 4.00pm
24 December 2010 until 1.00pm on 25 December 2010 and alternate years thereafter and from 1.00pm on 25 December 2011 until 5.00pm on 26 December 2011 and alternate years thereafter;
(ii)the children shall spend time with the mother from 1.00pm on 25 December 2010 until 5.00pm on 26 December 2010 and alternate years thereafter and from 4.00pm on 24 December 2011 until 1.00pm on 25 December 2011 and alternate years thereafter;
(k)Unless otherwise agreed once [X] commences school if the children's birthdays or the father's birthday occur on a school day from 5.00pm to 7.00pm and if a child's birthday occurs during the father’s time with the children, time is suspended from 5.00pm to 7.00pm;
(l)Unless otherwise agreed if the children's birthdays or the father's birthday occur on a non-school day from 10.00am to 2.00pm and if a child's birthday occurs during the fathers time with the children, time is suspended from 10.00am to 2.00pm;
(m)Unless otherwise agreed once [X] commences school if the mother's birthday occurs during the father's time with the children, time is suspended from 5.00pm to 7.00pm on a school day and from 9.00am to 1.00pm on non-school day;
(n)Commencing third term school holidays 2010 the children's time with the father pursuant to paragraphs 3 (b) and (c) is suspended during all school term and Christmas holidays;
(o)Other time and telephone communication as agreed.
That unless otherwise agreed changeover take place at [omitted] Police Station.
That pending attendance for family therapy and continue if recommended by the family therapy psychologist, the parties use a communications book to communicate with the other party with respect to issues concerning the children’s welfare and ensure the communications book travel with the parties at changeover time.
That the parties and the children attend family therapy with a psychologist nominated by the Independent Children's Lawyer.
That the order appointing the Independent Children's Lawyer is discharged.
That upon the father arranging at his expense for an appropriately qualified computer expert to attend upon the mother’s premises to assess and/or install all necessary software, hardware and interactive capacity, and the father thereafter doing all such acts and things as may be recommended by his expert to provide proper Skype capacity at his expense and ongoing expense, then the father have contact by Skype with the children each alternate Sunday and the mother make the children available between 6.00pm and 7.00pm all for such purpose.
IT IS NOTED that publication of this judgment under the pseudonym Taryn & Sindall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 234 OF 2008
| MS TARYN |
Applicant
And
| MR SINDALL |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Taryn, who for convenience I shall call the mother, and
Mr Sindall, who for convenience I shall call the father, have two children [X] born [in] 2005, and [Y] born [in] 2006. They disagree on the children's living arrangements.
The mother at the commencement of the hearing proposed that the children live with her and not spend overnight time with the father until 2010 and then only one night, not progressing to 2 nights until [X] commences school.
At the end of the hearing her proposal is that she have sole parental responsibility for the children, and that the children live with her and spend time with the father;
a)On [Y]'s birthday [in] 2009 from 10.00am to 5.00pm;
b)Until January 2010 in accordance with the current order of 27 August 2008, that is from 10.00am to 5.00pm each Wednesday and Sunday;
c)From January 2010 until June 2010;
i)each alternate weekend from 10.00am Saturday to 5.00pm Sunday;
ii)each alternate Wednesday from 10.00am to 5.00pm;
d)From June 2010 until June 2011;
i)each alternate weekend from Friday at 4.00pm until Sunday at 5.00pm;
ii)each alternate Wednesday from 10.00am to 5.00pm;
iii)on [X]’s birthday from 10.00am to 2.00pm;
e)From June 2011;
i)each alternate week from Friday 4.00pm to Sunday 5.00pm;
ii)each alternate week from Wednesday 9.00am until Thursday at 9.00am;
f)Alternating Christmases from 10.00am on Christmas Eve until 1.00pm on Christmas Day and from 1.00pm on Christmas Day until Boxing Day;
g)
Commencing July 2010 during school term holidays two lots of
3 nights and during summer holidays 2010/2011 two lots of four nights;
h)Commencing with start of school in 2011, half school holidays.
The father’s proposal at the commencement of the hearing was that the children should spend equal time with their mother and father. At the end of the hearing that still remained his principal proposal, but he had acknowledged in his evidence that the lack of communication between him and the mother meant that it was not possible at present. It was still his long-term goal.
At the conclusion of the hearing his counsel said that equal time was still the father’s primary proposal but did not support it with submissions. The father’s alternative proposal at the end of the hearing is that the mother and the father have equal shared parental responsibility for the children and that the children live with the mother and spend time with the father;
a)Commencing immediately each alternate weekend from 5.00pm Friday to 5.00pm Sunday;
b)Commencing 1 May 2010 each alternate weekend from 5.00pm Friday until 9.00am Monday;
c)Until [X]’s birthday [in] 2009 each alternate Wednesday from 10.00am to 5.00pm;
d)Commencing after [Y]’s birthday from each alternate week 9.00am Wednesday to 9.00am Thursday;
e)Between 27 December 2009 and 9 January 2010 three periods of two consecutive nights and suspension of the other time during the school holidays;
f)During first term school holidays 2010 two periods of three nights each and thereafter half school holidays.
The Independent Children's Lawyer’s recommendation is that the parties have equal shared parental responsibility for the children, that they live with their mother and spend time with their father;
a)Until [Y’s birthday] 2009 each alternate weekend from Saturday at 10.00am until Sunday at 5.00pm and each Wednesday from 10.00m to 5.00pm;
b)From [Y’s birthday] 2009 until May 2011 each alternate weekend from 9.00am Friday until 5.00pm Sunday and each alternate week from 9.00am Wednesday until 9.00am Thursday;
c)From May 2011 each alternate weekend from Friday 5.00pm until 5.00pm Monday and each alternate Wednesday from 9.00am until 9.00am Thursday;
d)From September 2010 half school holidays and up to September 2010 weekend time be extended to four days in the school term holidays.
e)Time at Christmas and other celebratory occasions.
The Independent Children's Lawyer proposes that the parties be ordered to attend family therapy with a psychologist nominated by the Independent Children's Lawyer.
Once the father's application for equal time is disposed of, the issue is not large. It is the timing and degree of the children spending overnight time with the father.
Issues
The particular issues in this case are:
a)Family violence;
b)Parties’ communication;
c)Children's behaviour;
d)Relationship with each parent;
e)Parents attitude to each other.
These issues have to be put in the context of the provisions of the Family Law Act 1975 (Cth).
Background
The mother and father commenced living together in September 2002. The mother has three older children. They lived with the parties initially.
The relationship was volatile. The mother alleges the father was controlling and violent. The father says the mother’s moods varied. He says she was often was aggressive and irrational.
The parties initially separated on 20 July 2007. The mother says that the father, during an argument, struck her in the face. She obtained an Intervention Order. The husband was charged with criminal offenses. They were dealt with in March 2008 when he pleaded guilty to recklessly causing injury. No conviction was recorded and he was placed on a two year good behaviour bond. The husband now denies that he deliberately struck the wife. He says he was holding her to contain her aggression when he accidently struck her in the face.
The mother took the children with her when she left. The father saw the children at [omitted] Contact Centre in [M]. The mother would not agree to any other form of contact between the children and the father. The contact centre report shows a good relationship between the father and the children. The father stopped going because he felt he could not cope with the restricted basis on which he was seeing his children.
The parties had several attempted reconciliations the last one from late December 2007 until 15 or 17 January 2008. The parties differ about what occurred when they separated. They agree that [Y] would not settle to sleep and the father spent a considerable amount of time attempting to get her to sleep. The mother says that she asked the father to give her [Y] to breast feed her. She says he eventually did but was abusive including threatening to “whack” her. The father left the house. The father admits that he became frustrated and aggressive, because he had been awake all night and felt the mother was trying to take ownership of [Y].
The father returned later in the day to retrieve his wallet. The mother locked the house and he broke a window to get in. The mother says [X] was hit by the broken glass. The father says he was not.
The father did not see the children until May 2008. He did not know where the mother and children gone. The mother commenced these proceedings in January 2008. The first court date was at the Moe Circuit in February 2008. The father had not been served. I made orders that the children live with the mother and the father's time with the children be reserved.
At the next court date in May 2008 consent orders were made for the father to spend supervised day time with the children. The parties agreed on the preparation of a report and subsequently agreed that that be done by Dr Jacobson. The proceedings were fixed for final hearing in the August 2008 circuit.
During changeover at this time each party was always accompanied by another at changeover. The father by his sister Ms T, the supervisor, and the mother by a friend, either Ms W or Ms B. The mother and her friends kept a communication diary, a book kept in the mother's car where they recorded events at changeover. The parties used a communication book. The father made many diary notes of his own and wrote letters to the children with the intention of giving them to the children when they were older. Consequently, there is much contemporary written material.
In July 2008 the mother became ill and was in hospital from Sunday to Friday. The children were cared for by her friend, Ms W. The father was not told. This was on the advice of the mother's domestic violence worker.
In October or November 2008 the parties attended mediation. They agreed to have overnight time between the father and the children and then come back to mediation. Commencing early December 2008 the children had four occasions of overnight time of one night with their father. The mother would not continue with any further overnight time.
In December 2008 the mother commenced seeing a psychologist
Mr W. He saw the mother and the children at their home on
15 occasions between December 2008 and September 2009.
The final hearing did not proceed in August 2008. Dr Jacobson had prepared his report. He described a close and affectionate relationship between the father and the children. He recommended that the daytime time continue and that there be no overnight time until the children commenced school.
After a contested interim hearing I ordered the daytime time continue increasing to 10.00am to 5.00pm each Wednesday and Sunday. I fixed the final hearing for February 2009 in Melbourne.
The father appealed against the interim orders. The appeal had not been heard by February 2009 and so the final hearing was adjourned to May 2009. By then the appeal had been heard but judgment had not been given. I fixed the hearing for October 2009 and ordered a further report by Dr Jacobson.
Dr Jacobson
Dr Jacobson prepared two reports and gave evidence. In both reports he described a close and affectionate relationship between the children and their father. However, he did not recommend overnight time until school commenced.
Dr Jacobson said that because of the lack of communication between the parties equal time was not appropriate.
Not recommending overnight time for children of the age of [X] and [Y] in the context of an observed good relationship between the father and the children is unusual. For his second report Dr Jacobson was particularly concerned about the mother's description of the children's reaction to overnight time and in particular that [Y] had defecated in his bed. However, when it was pointed out to Dr Jacobson that [Y] at the time was still in nappies he acknowledged that he misunderstood the circumstances and that this episode was not significant. In the end, Dr Jacobson accepted that overnight time is appropriate before the children attended school.
Mr W
After the children commenced having overnight time with the father in December 2008 the mother consulted Mr W. He prepared two reports and gave evidence.
Mr W's method of practice is to see those who consult him in their home. From early December 2008 until September 2009 he had seen the mother and the children at their home 15 times. Each visit was about an hour.
The mother said that she consulted Mr W because she wanted advice about how the children were coping with the overnight time. Mr W did observe the children, but he said he was principally concerned with speaking to the mother, but always with the children present. He identified the mother’s principal concern as fear of coming under the control of the father again.
Mr W had not spoken to the father. He telephoned his mobile telephone number several times but it rang out. Consequently, although he wanted to speak to him he did not. He said that he should have written a letter to attempt to get in contact with the father.
Mr W is not a child psychologist but has worked with families in a similar position to this one on many occasions. He described attachment theory. He said that his observations showed that the children's primary attachment was to their mother. He had not seen the children with the father but his opinion was that they had a strong relationship with their father.
Like Dr Jacobson, Mr W said that the lack of communication between the parties meant that there could not be equal sharing of time. His observation that the children's primary attachment to their mother is just as significant a reason in Mr W's view.
Mr W thought that the children should be having overnight time with their father. Initially in his evidence his preference was to commence with one night initially but then reasonably quickly increase it so that the children would spend alternate weekends Friday night to Sunday night with their father and one night overnight in the intermediate week. Later he said the two night weekends could start immediately. He considered that the alternate weekends could be extended to Monday morning but not until [Y] was older. Again his preference would be to monitor the children's reaction but said it would be one or two years before [Y] could to spend more than one night at a time on a regular basis away from her mother.
Mr W considered that the children should be spending half school term holidays with their father from the middle of next year that is 2010, and until then they should spend some extended periods during the Christmas holidays and Easter holidays.
Mr W emphasized the importance of routine particularly as the children commenced school. For this reason he considered that Friday night to Monday morning in alternate weeks and one overnight in the immediate week was appropriate for school time and then half school holidays at a school time.
Mr W said that he had told the mother that the children should be spending alternate weekends two nights at a time with their father and one night in the intermediate week, and that he had told her this should start from early in 2009. However she did not take his advice. Mr W said the mother was particularly concerned that the father might again come to control her.
Mr W is an experienced psychologist. Unlike Dr Jacobson he has had the advantage of seeing the mother and the children regularly in their own home. He has the mother's confidence. He was called as the mother's witness. He has not met the father, and not seen the children with the father. Nevertheless, he has a strong opinion about the need for the children to be spending overnight time with their father. His opinion carries considerable weight.
Issues
Domestic violence
Both parties describe a volatile relationship. Each alleges aggression by the other. The father’s description of the event in July 2007 lacks conviction. The mother suffered an injury to her face. Her teeth went through her lip. The father pleaded guilty to causing actual harm.
The father acknowledges that when he returned to the house in January 2008 to retrieve his wallet he broke a window to gain entry. Whatever the explanation the conduct must have put the wife in fear of her personal safety as she says.
The father alleges that the wife was violent to him. He describes an incident in 2005 when the wife struck in the face. The incident is corroborated. The wife said this was done as a playful gesture. This seems unlikely.
The definition of domestic violence includes conduct which puts a person in fear of their or another persons safety The two people who accompanied the mother to changeover found the father's demeanour intimidating. Ms B stopped attending because she was afraid for her safety.
The father's sister attended a changeover during the time she was a supervisor. She did not consider the father's conduct to be intimidating.
The father is an intense and emotional person concerning his children. Clearly he is committed to seeing his children and frustrated by the amount of time it has taken to reach a final hearing. Perceptions of behaviour by those assisting the mother and the father are undoubtedly different. The father's sister is unlikely to see his behaviour as intimidating. However, Ms W and Ms B do see it that way. Neither of them had a personal interest in being involved in a changeover process. They did it out of their generosity to assist the mother and the children. Ms W in particular showed no bias towards the mother so far as children's issues are concerned. She very readily described the way in which the children were pleased to see their father and greeted him affectionately. The children's relationship with their father is a significant issue. Ms W’s evidence on this aspect assists the father’s case.
Both parties describe other incidents. On any view, there was family violence.
It was however, violence in the context of the relationship between the parties. It does not occur now, although there was an incident at changeover at Easter 2009 which resulted in the mother applying for obtaining a further intervention order. This was granted after a contested hearing.
The incident occurred because the father wished to discuss [X]’s kindergarten with the mother. Notwithstanding this incident the risk of threats of violence, and actual violence is low. The parties need not meet except at changeover.
The Department of Human Services have reached a similar conclusion. On the 23 February 2008 the Department wrote to both parties. The letters refer to the parties again separating because of ongoing violence. The letters advise that if the parties reunite and the children are again subjected to family violence that the department would investigate with a view to obtaining a Children's Court order to remove the children.
The letters advised that because the parties had separated the current report could be closed.
The husband has physically disciplined the children. [X] told
Dr Jacobson that his father smacks him. The father acknowledges an occasion when [X] ran onto a road and he smacked him as a lesson against such dangerous behaviour. The father has said that he sees smacking as a means of correction. One of the interim orders contained a prohibition against corporal punishment. The father said the road incident was the only occasion. Dr Jacobson said he was unable to tell whether [X]’s recounting was a reference to that recent incident on there was more than one incident.
While there is some evidence of physical discipline of [X] by the father, there is no evidence that the children are at risk from violence by their father. He has a view of physical discipline not shared by the mother, but it goes no further than that. The father and his sister have given the evidence of the times the children spent with their father. Clearly they enjoy their time. Their mother acknowledges that they do and others have observed the children's affection for their father and their enjoyment in his presence. They enjoy their time with him.
Parties’ communication
The parties do not communicate except through the communication book. The mother says she cannot communicate with the father. The father says he would like to communicate with the mother but she will not engage him.
Changeover on Easter Sunday 2009 illustrates the relationship between the parties.
The mother had written in the communication book about [omitted] four-year-old kindergarten. The father wanted to talk to her about [X] attending three-year-old kindergarten. He attempted to do this when the children were returned after the Easter Sunday time with their father. This incident resulted in the mother applying for an Intervention Order and obtaining one after a defended hearing.
Children's behaviour
The mother described regression in toilet training by both children. She described aggressive behaviour by [X] towards his sister and disturbed sleeping patterns by [Y].
Particularly significant for Dr Jacobson was the mother’s statement at the time of the second report that [Y] had defecated while in bed. However, as already explained, Dr Jacobson misunderstood the context of this evidence. It occurred sometime after the overnight contact of December 2008 had ceased and while [Y] was still in nappies.
Aggressive behaviour by [X] was not confined to pushing his sister after they had been with their father. Ms W, during the week that she cared for both children when the mother was in hospital, noticed that [X] hit everybody, something she had not seen in a child before.
Both psychologists, and the mother in the end, acknowledge that any changes in behaviour by the children, including regression in toilet training, were not necessarily attributable to the children being disturbed by spending time with their father, including overnight time. It could be caused by them not spending enough time with their father or by other reasons.
Particularly significant is that Mr W has seen the children regularly over nine months. He spent his time with the mother rather than specifically observing the children, but nonetheless saw nothing in their behaviour of any particular concern.
Relationship with each parent;
The children's primary attachment is with their mother. They have a close and loving relationship with her.
The mother says that the children love their father and enjoy their time with him. Ms W said the children were pleased to see their father and affectionate to him a changeover. She saw nothing out of the ordinary in occasions when the children showed some reluctance towards their father at changeover.
Parents attitude to each other
Each parent has a poor opinion of the other. The mother says that she suffered in a violent and controlling relationship. She cannot communicate with the father, and does so only through the communication book. She describes his behaviour at changeover as intimidating.
The father is very critical of the mother. He has written a number of letters to each of his children with the intention of giving the letters to them when they older, although he says he may not do so. Some passages in the letters are highly critical of the mother.
Equal time
The presumption of equal shared parental responsibility contained in s.65DA of the Family Law Act 1975 (Cth) has been rebutted because of the family violence. That means that I am not required to consider equal time or substantial and significant time within the context of s.65DAA.
Nonetheless, because it is formally proposed by the father I must consider it. Dr Jacobson and Mr W both say it is not appropriate particularly because of the lack of communication between the parties. The parties cannot communicate. The mother says she cannot communicate at all with the husband except by way of the communication book. The husband wants to be able to discuss children's issues with the mother and is frustrated because she will not. He sees it as an aspect of the mother's attempt to interfere with his relationship with the children.
Whatever the reason for the lack of communication it does not exist.
The ability to communicate is a consideration under s.65DAA(5). Apart from that, the expert evidence is strong and clear. The lack of the party’s ability to communicate is itself a reason for finding that equal time would not be in the children's best interests.
Best interest considerations
The children's best interests are the paramount consideration s.60CA. Their best interests are to be considered bearing in mind the objects of the children’s provisions of the Family Law Act1975 (Cth) set out in s.60B. The considerations for determining a child's best interests are in s.60CC. These are the relevant considerations.
Benefit of relationship with children
The first of the primary considerations is the benefit to the children of a meaningful relationship with each parent. The children live primarily with their mother. One of the mother's concerns is that overnight time with their father immediately might have a detrimental effect on the children's behaviour. This could affect their relationship with their mother. Since the children's behaviour is not a matter of concern the children's meaningful relationship with their mother will not be affected by overnight time appropriate for their age.
The development of the children's meaningful relationship with their father requires that the children spend overnight time with their father. The evidence of Mr W in particular suggests that it is important that it start straight away.
Protection from harm
The second of the primary considerations is the need to protect the children from harm. The mother in her affidavits states concern for the safety of the children in their father's care. The father lives on a farm. The mother claims that [X] has ridden on the tractor with the father without a seatbelt. The mother claims that the father has left the children without adequate supervision given the hazards farms have for young children. She also claims that [X] has not been supervised properly when at the fathers [vehicle] depot and so is in danger from moving buses.
[X] fell down the steps of a [vehicle] during one of his periods with his father and bumped his head. The [vehicle] was stationary in the depot.
The father denies any risk. He says that the tractor is fitted with a separate seat and a seatbelt and he has produced a photo showing a separate seat. He says that the children are properly supervised at the farm and have been when with him at the [vehicle] depot. He says the incident when [X] in fell down the steps of the [vehicle] was a simple childhood accident.
The children have now spent more than 12 months unsupervised time with their father. He understands the need for proper supervision of children. Any incidents have been minor. There is no risk to the children when with their father.
Children's wishes
The father says that [X] has told him he wants to spend more time with him. Dr Jacobson did not interview [X] for the first report but did for the second. [X] enjoys his time with his father and it is not surprising he might be saying he wants to spend more time with him. However he is not yet five and too young to express wishes to be taken into account in deciding how much time he should be spending with his father.
Children's relationship with parents and other people
The children's primary attachment is to their mother. They have strong secondary attachment with their father. They have frequent contact with him and so a relationship with the father's extended family. The nature of their relationship with their mother means they need to live primarily with her and have a routine which is based around living with her. The expert evidence shows that three nights at a time away from her mother is too much for [Y] now.
Promotion of relationship between parent and child
The children did not see their father for nearly 5 months following separation. However, since then the children have spent regular daytime time with their father, and for a short time at the end of 2008 and the beginning of 2009 some overnight time with him.
The mother has shown that she will comply with court orders, and so will promote the children's relationship in this context.
Likely effect of change in children's circumstances
The children's circumstances will not change significantly if spending overnight time with their father under any of the proposals.
Parents’ ability to provide for children's needs
The mother has some criticism of the father's care for the children when with him. None of the criticism is justified.
Family violence
This is dealt with above. It now has little relevance in determining whether or not overnight time should commence.
Child Support
The father has paid little by way of child support. This received some attention during the hearing. Although it can be a best interests interest consideration under s.60CC it does not help in this case in determining when overnight time should commence and how much they should be.
Shared Parental Responsibility
The mother proposes that she have sole parental responsibility for the children. The father and the Independent Children's Lawyer propose that there be equal shared parental responsibility. While the presumption of equal shared parental responsibility has been rebutted it does not mean that it is not in the children's best interests that these parties share that responsibility.
Section 65DA states the effect of the parenting order that provides for shared parental responsibility. If there is such an order it requires the parties to make decisions about major long-term issues jointly and to consult each other in relation to the decision to be made about those issues.
The children's interests will not be served by having their father excluded from participation in decisions about major long-term issues as the mother proposes. The parties do not communicate except through the communication book, but that provides a means for them to consult about major long-term issues such as schooling. Excluding the father from these decisions will not promote the children's relationship with him. The promotion of the relationship is more important than any difficulty in communication that exists.
Conclusion
The children's primary attachment to their mother means that they should primarily live with her. Both Dr Jacobson and Mr W state this. The issue then is what time they should spend with their father. The best guide is given by Mr W, which means overnight time immediately and eventually alternate weekends Friday night to Monday morning, one overnight during the intervening week and half school holidays.
The father’s proposal for three nights at a time is inconsistent with
Mr W's evidence that [Y] is too young now and it will be eighteen months to two years before that should happen. The father's proposal for two nights during the week is inconsistent with Mr W's evidence that children need routine during the school week.
The Independent Children’s Lawyer's proposal is largely consistent with Mr W's evidence. The strength of Mr W's evidence is his experience as a psychologist with people in a similar situation, the involvement he has had with the mother and the children, and that he obviously has the confidence of the mother even though she has not accepted his advice about the children's time with their father.
Mr W said that two nights on alternate weekends could start immediately. The Independent Children's Lawyer recommends that not start until after [Y]’s birthday on [omitted] and until then it be one night overnight alternate weekends and daytime on Wednesdays.
A consideration in this case is the mother's anxiety about the children spending overnight time with their father. The anxiety is misplaced but it exists. There is a small risk that anxiety by the mother will affect the children, particularly [Y], in their reaction to spending overnight time with their father. The Independent Children’s Lawyer's recommendation will mean two weekends with one night overnight.
The competing consideration is that starting two nights immediately will establish the routine for the children straightaway. On balance a small precaution against the small risk of the mother's anxiety is the better option.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Jan Smith
Date: 18 November 2009
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