Toan and Tirri
[2007] FamCA 704
•17 July 2007
FAMILY COURT OF AUSTRALIA
| TOAN & TIRRI | [2007] FamCA 704 |
| FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child |
| Family Law Act 1975 (Cth), Part VII |
| APPLICANT: | Ms Toan |
| RESPONDENT: | Mr Tirri |
| FILE NUMBER: | DNF | 184 | of | 2005 |
| DATE DELIVERED: | 17 July 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 18 & 19 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Davis |
| SOLICITOR FOR THE APPLICANT: | Davis Norman |
| COUNSEL FOR THE RESPONDENT: | Ms Bowen |
| SOLICITOR FOR THE RESPONDENT: | Bowen Lawyers |
Orders
(1)That all previous parenting orders are discharged.
(2)That the parents have equal shared parental responsibility for the children a daughter born in May 1999 and a son born in April 2001.
(3)That the children live with the wife.
(4)That the children spend time with the husband as follows:
(a) during school terms for the remainder of 2007 and for terms 1 and 2 in 2008 each alternate weekend from conclusion of school on Friday afternoon until the commencement of school on Monday morning (or Tuesday morning in the event that Monday is a Public Holiday) to commence on the Friday that the husband is due to spend time with the children pursuant to the previous order;
(b) during school terms from the commencement of third term in 2008 as in sub-paragraph (a) and in each intervening alternate week from the conclusion of school on Monday (or 2.30 pm in the event that Monday is a Public Holiday) until the commencement of school on Tuesday commencing on the first intervening Monday in school term in 2009;
(c) for half of each school holiday period being the second half in years ending in odd numbers and the first half in years ending in even numbers;
(d) by telephone each Wednesday between 6.00 pm and 7.00 pm;
(e) on each of the children’s birthdays at times to be agreed by the parties and in default of agreement as ordered by the Court;
(f) on Fathers Day each year from 9.00 am until 6.00 pm.
(5)The time spent by the husband with the children during school terms is upon the condition that the husband does not attend to any employment after 4.30 pm on any school day on which the children spend time with him and does not attend on any employment on weekends.
(6)The time spent by the husband with the children during school holidays is upon the condition that the husband is on leave from his employment for that time.
(7)That the children are to spend each Mothers Day from 9.00 am to 6.00 pm with the wife and are to spend not less than two hours with the wife on her birthday if same falls during a time when the children are in the care of the husband pursuant to these orders.
(8)During times when the children are in the husband’s care during school holiday periods the children are to telephone the wife each Wednesday between 6.00 pm and 7.00 pm.
(9)That the parents both spend time with the children on Christmas Day with the children remaining in the care of the wife until 2.00 pm on Christmas Day in years ending in odd numbers and spend time with the husband from 2.00 pm Christmas Day on odd numbered years until 9.00 am the following morning.
(10)In years ending in even numbers the husband is to spend time with the children on Christmas Day until 2.00 pm and from 2.00 pm until 9.00 am the following day the children are to remain in the care of the wife.
(11)That the husband and the wife each inform the other as soon as possible of any medical emergencies concerning the children.
(12)That changeover for contact occurring on school days take place by the husband collecting the children from and returning the children to school or after school care.
(13)That changeovers on other days take place at such place as the parties agree and in default of agreement at the T Centre.
(14)That neither party speak negatively about the other parent in the presence of the children or allow any other persons to speak negatively about the other parent in the presence of the children.
(15)That the wife shall authorise the school that the children attend to provide to the husband all information concerning the children’s progress at that school.
(16)That all matters be removed from the active pending list.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dawe delivered this day will for all publication and reporting purposes be referred to as Toan and Tirri
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNF 184 of 2005
| MS TOAN |
Applicant
And
| MR TIRRI |
Respondent
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court between the applicant wife Ms Toan and the respondent husband Mr Tirri concern the welfare of the children of their marriage, a daughter born in May 1999 (now aged 8) and a son born in April 2001 (now aged 6). Both parties sought orders that the husband and wife have equal shared parental responsibility for the children and that the children live with the wife. The dispute to be determined by the Court was the amount of time the children should spend with their father.
The wife proposed that the children spend time with the husband as follows:
“3. That the children spend time with their father as follows:-
(i)each alternate weekend from after school on Friday until the commencement of school the following Monday morning;
(ii)for half of each school holiday period being the second half in years ending in odd numbers and the first half in years ending in even numbers;
(iii)by telephone each Wednesday between 6pm and 7pm;
(iv)on the children’s birthday’s (sic) at times agreed between the parents;
(v)on Father’s Day from 9.00am to 6.00pm.”
The wife sought other associated orders in relation to other special occasions and specific directions.
The husband sought the following orders:
“2.That the children spend time and communicate with him “as agreed to between the parents but in default of agreement as follows:
(a)during school semesters each alternate weekend from the conclusion of school on Friday afternoon, or Thursday afternoon, in the event that Friday is a public holiday, until the commencement of school on Monday morning, or Tuesday morning, in the event that Monday is a public holiday, to commence from the date of the order;
(b)in each other week during school semesters, as described at paragraph 3(a) herein, from the conclusion of school on Monday afternoon, or 2.30 pm, in the event that Monday is a public holiday, until commencement of school Tuesday morning, provided that the husband no engage in casual employment on these occasions;
(c)from the commencement of the school year in 2008 during the school semesters, from the conclusion of school on Monday afternoon, or 2.30 pm, in the event that Monday is a public holiday, until commencement of school Wednesday morning, provided that the husband not engage in casual employment on these occasions;
(d)during first half of all school holidays in the year 2007 and each alternate year thereafter;
(e)during second half of all school holidays in the year 2008 and each alternate year thereafter.”
The husband also sought orders in relation to special occasions, such as children’s birthday and Father’s Day and other special occasions including in paragraph 2(h):
“(h)on the family events, including anniversary of the death of ancestors and birthdays of the husband and his extended family members for a period of no less than 3 hours, with the husband to notify the wife of the dates before the end of January in each year.”
The husband also sought various associated and specific orders.
At the commencement of the trial before me, Consent Orders were made in relation to financial matters which had been in dispute between the husband and wife and the husband’s sister.
The Trial
The trial proceeded before me in Darwin on the 18 June 2007 and concluded on the 19 June 2007 when I reserved judgment.
The wife was represented by Ms Davis, the husband by Ms Bowen. I received the affidavit of evidence in chief of each of the parties and heard their oral evidence. I also received the Family Report and heard the oral evidence of the Family Consultant, Mr R.
Background and Chronology
The husband was born in Vietnam in 1956 and is now nearly 51 years of age. The wife was born in Vietnam in 1967 and is now 40 years of age. The husband arrived in Australia in 1988. The wife arrived in Australia in 1996. Both parties are Australian Citizens and reside in Darwin. The husband and wife married on the 6 December 1997 and separated in July 2004.
The two children of the relationship, a daughter, born in May 1999 (now aged 8) and a son born in April 2001 (now aged 6) have resided with the wife since the separation. It is proposed that they continue to reside with her.
The husband alleges that after the separation in July 2004 for about two months he did not know the whereabouts of the wife and children. He then attempted to negotiate a reconciliation with the wife. He spent time with the wife and the children but the relationship broke down at around the end of January 2005.
Proceedings were commenced by the wife in September 2005 when she sought orders in the Federal Magistrates Court in relation to financial matters and children’s issues. Following the Response filed by the husband, interim parenting orders were made by consent on the 8 February 2006.
The significant parts of the orders of the 8 February 2006 are as follows:
“BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER OR OTHER ORDER:
1.That the children [a daughter] born [in] May 1999 and [a son] born [in] April 2001 (“the children”) live with the Wife.
2.That the children have contact with the Husband as follows:
a.from 10 am until 1 pm on Sunday on 12 February 2006;
b.from 10 am until 3 pm the following Sunday for a period of 4 weeks;
c.from 10 am until 6 pm on Sunday, to commence at the conclusion of contact described at 2b herein, for a period of 4 weeks;
d.from 10 am Sunday until 6 pm the following Sunday each alternate week, to commence at the conclusion of contact described at 2c herein;
e.telephone contact each Wednesday between 6 pm and 7 pm;
f.on children’s birthday at times as agreed to between the parties;
g.on family events including anniversaries of the death of their paternal ancestors, should they fall on a contact day on 18 March 2006, 3 June 2006 and 7 October 2006 from 12 noon until 3 pm on each occasion;
h.at any further or other times as may be agreed to between the parties.”
Following an occasion when the husband was unable to spend time with the children pursuant to the interim consent order, he commenced Contravention proceedings. The Federal Magistrates Court records the orders made on the 16 October 2006 (made after the parties negotiated a consent order to vary the orders on the 8 February 2006).
The orders of the 16 October 2006 are as follows:
“1.That the court finds that the mother […] has contravened the orders of the Federal Magistrates Court at Darwin made 8 February 2006 and by way of penalty the mother is ordered to enter a recognizance in the sum of FIVE HUNDRED DOLLARS ($500.00) subject to the condition that she obey all orders of the court in respect of the children [a daughter] born [in] May 1999 and [a son] (sic) […] born [in] April 2001 and the period of the recognizance be for SIX (6) months.
2.It is ordered by consent that the orders of the court made on 8 February 2006 be varied as follows:
i)That order 2 d. be deleted and replaced with:
From after school on Friday until the commencement of school the following Monday each alternate weekend to commence 27 October 2006.
ii)That order 2 be amended by deleting the words: “or want to return to their mother’s care”
3.That the following further orders be made:
10.That the parents pass between them a Communication Book to inform one another of all issues concerning the children’s care, welfare and development.
11.That the father and the mother attend forthwith a Post Separation Parenting Program.
4.That the Contravention Application and filed 28 April 2006 be otherwise dismissed.”
Since the orders were made on the 16 October 2006 the children have been spending time with the husband in accordance with those orders.
In May 2007 Family Consultant, Mr R, conducted interviews with the wife, the husband and his sister, and a separate interview with the children. Mr R’s report is dated the 14 May 2007.
Issues
The parties agreed that the children should live with the wife and spend time with the husband. In determining the amount of time the children should spend with the husband, the wife wished the Court to take into account the husband’s capacity to provide for the needs of the children particularly in regard to his past work schedule and the lack of routine. She also asked the Court to take into account the children’s wishes as expressed to her and the Family Consultant.
The wife asserted that the husband’s desire to increase the time he spent with the children was motivated by his desire to reduce his child support, rather than to spend time with the children.
The husband raised issues about the children benefiting from spending more time with him because of his better English language skills and their relationship with his extended family.
Evidence and Findings
The wife relied upon her affidavit of evidence in chief filed on the 31 May 2007. She was cross-examined by counsel for the husband. During cross-examination she maintained the evidence in similar terms to that contained in her affidavit.
The wife maintained that her concern was that when the children spent time with the husband they were disrupted from their normal routine, going to bed later than usual and spending time in the care of other relatives whilst the husband worked.
The wife was not challenged about her evidence concerning the stable routine for the children in her care and the extra-curricular activities undertaken by her with the children.
The husband relied upon his affidavit of evidence in chief filed on the 31 May 2007. He was cross-examined by counsel for the wife. The husband conceded that his sisters helped care for the children on Friday nights when he works as a courier. He also conceded that the children spent time overnight at his parents’ home. On some occasions he also stayed there; on other occasions he collected the children the next morning. He agreed that he sometimes collected the children very late at night after his courier work.
When cross-examined about the issue of child support, the husband conceded that he had appealed the child support assessment. One of his reasons for the appeal was the cost of maintaining telephone contact with the children to the mobile telephone number provided by the wife. His obligation to support his parents (in relation to whom he had given the Immigration Department an assurance of support when they migrated to Australia) was another reason for the appeal seeking to reduce his child support payment.
When these issues were put to the husband he asserted that he would pay the child support according to the assessment by the Child Support Agency.
The husband has made application to reduce the child support assessment however I am not satisfied that the evidence indicates that his request to spend more time with the children is primarily based upon financial considerations.
During his oral evidence the husband confirmed his view that his command of the English language is better than that of the wife. He conceded that the wife has qualifications in early childhood development.
When cross-examined about his commitments to work as a courier, the husband’s evidence was that for the past year he has been working on Friday evenings as a courier from approximately 6.30 pm to 10.30 pm, sometimes later. At first he described this as three hours, then conceded it was usually longer than three hours. He said in cross-examination that he had already had told his “boss” that he did not want to work Friday nights, but said that his employer needed him. His evidence was then somewhat vague referring to arrangements he might make in the “near future” and that “in the future eventually” he would not work on a Friday or Saturday when the children were with him.
During cross-examination the husband appeared reluctant to acknowledge the children’s wishes about spending time with him as set out in the Family Report.
The husband was also inconsistent in his evidence about leave during school holidays. He conceded that it was difficult to get leave from his University employment during University semester, but was unable to say how that would interact with school holiday time.
The husband conceded that he currently leaves home at 7.30 am in the morning to travel to work and after finishing work at 4.30 pm he could be home by 5.00 pm.
The husband readily indicated a willingness to pay for any child care for the children which would be required on school day afternoons when his time with the children was to commence.
The Family Consultant, Mr R, gave evidence. His report of the 14 May 2007 is before the Court. Mr R was cross-examined by both counsel.
Mr R confirmed that the children showed a reluctance to any changes to the time spent with the husband. He confirmed his recommendations that there be a gradual extension of the time the children spend with the husband and that it be on the basis that he is not engaged in his casual employment during that time.
Mr R described the wife as someone who is very committed in her role as mother. She had genuine beliefs, including her concern, that the husband was not around a lot when the children were meant to be spending time with him.
Mr R conceded that there was some inconsistency in the husband’s case because although he had indicated that he would not continue with his casual employment on Friday evenings, he had not by the time of the trial taken effective steps to cease working on those Friday nights.
Mr R conceded that the daughter’s views were clear and that she was a strong-willed child. He expressed the view that it might be a challenge to encourage the daughter to accept the terms of an order that she spend more time with the husband.
The Law
The Family Law Act contains the following significant provisions:
Section 60B (1) and (2)
The objects of this Part 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 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).
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The Court is required to consider the matters set out in Section 60CC (2) and (3) which provide:
Primary considerations
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family; if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Both parties propose that the parents have equal shared parental responsibility concerning the children. The Court is therefore required to consider the provisions of Section 65DAA in relation to equal time and substantial and significant time. In this matter the provisions of Section 65DAA (2), (3), (4) and (5) are significant.
Section 65DAA
Equal time
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The husband does not seek an order that the children spend equal time with him. He does however seek an order that the children spend substantial and significant time with him.
Consideration of all factors
I turn to consider the orders sought by each of the parties and in particular whether the children spending substantial and significant time with the husband would be in the best interests of the children, taking into account the definition of substantial and significant time in Section 65DAA(3).
Primary Considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
(b)The need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
The provisions of Section 60CC(2)(b) in relation to protecting the children from harm are not relevant in this matter.
Both parties accept that the children will benefit from having a meaningful relationship with each parent. The children have a strong close relationship with the wife who has been their primary care giver. The children regularly spend time with the husband and have established a meaningful relationship with him.
Additional Considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes.
The children were interviewed by the Family Consultant. At that time in May 2007, the daughter was eight years old and the son six years old. The wife’s evidence was that the children did not want any change to the current arrangements.
The Family Consultant’s report at paragraphs 32, 34, 35, 36 and 37 states:
“32.[The daughter] presented as an out-going, bright young girl who spoke openly about her views in relation to the family. She is a confident girl who displays an element of mischievous (sic) about her.
…………
34.[The daughter] reported that the current parenting arrangement was “good” stating that she “liked it that way.” She reported that she did not like going to her father’s place “that much” and expressed a preference to leave the current arrangement in place. She reported that her father was often at work and that when he was not at work he was often resting, doing housework or just unavailable to her and [the son].
35.[The daughter] reported that she often stayed up late when at her father’s place or when staying at her aunt’s place. She viewed her aunt as imposing more limits on her and [the son] than either of her parents. Although she said her aunt allowed them to play games and do “good stuff” she also did not tolerate noisy play nor would she allow them to play in the rain. [The daughter] stated that she did not enjoy the food prepared by her aunt or her father and that she preferred the food her mother cooked.
36.[The daughter] spoke about the activities she enjoyed with her parents and noted that she and [the son] at times went on outings with each of their parents. She stated that mostly of a weekend she would watch television, play on the computer, go skating, or fight with her brother which was an activity she apparently enjoyed.
37.[The son] presented as an active young boy who was difficult to engage in interview. He gave limited responses to questions asked and provided little that was relevant to the family’s current situation. Like his sister he expressed the view that he liked the current arrangement as it is and he did not wish to change that arrangement. He stated that he preferred being with his mother when asked to talk further about his views.”
In paragraph 41 of his report, Mr R comments “…….It is difficult to determine whether the mother has deliberately sought to influence the views of the child as alleged by the father, or whether their views are simply a reflection of their own experience of the parents and their separation.”
Of significance is the comment of Mr R in paragraph 44:
“44.The children have both expressed a reluctance to spend more time with the father than is currently the case. Their view is that he is not available to them during the time they do spend with him and that they simply prefer to spend time with the mother. [The daughter] in the past has also refused to have contact with the father and I suspect she is capable of challenging her parents if she feels strongly about an issue. That is, there is a possibility that an order of the Court that is not consistent with her views may pose difficulties for the parents, and [the daughter], in complying with the order.”
In paragraph 49 of his report Mr R refers to the possible reluctance of the children to accept any change in the arrangements.
The oral evidence of the Family Consultant was consistent with these sections of his report.
I take into account the ages of the children and the concerns expressed by the Family Consultant. In particular the views expressed by the daughter must be taken into account.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
The evidence of both parties and the Family Consultant indicate that the children have a strong secure attachment to the wife. The children interacted comfortably with both parents during the observed interaction.
The evidence of both parties referred to positive interaction with the children and the extended families
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
The wife conceded in the past there had been a finding that she had contravened an earlier order. The husband maintained that the children’s reluctance may have been due to the influence of the wife. This was accepted as a possibility by the Family Consultant.
The wife said in her evidence that she wished the husband to have a good relationship with both of the children and to spend time with them.
I am satisfied that the wife’s opposition to the extended time sought by the husband was based upon her genuine concern for the welfare of the children, rather than any significant unwillingness or inability to encourage a close relationship between the children and the husband.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The wife sees the changes proposed by the husband as having a disruptive effect upon the children’s routine. I accept the evidence of the wife that the children are settled in her care and are developing well under the current arrangements. I accept her concerns about the disruptive effect of the changes sought by the husband are genuinely held by her. I take into account the ages of the children which may be a factor in their capacity to adjust or cope with the changes proposed by the husband.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The husband asserted that he could overcome the practical difficulties of his employment by ceasing to work on those Friday evenings when the children spend time with him. However, he has not taken any definitive steps to achieve this prior to the trial.
The wife opposed the extension of time during week nights because she is able to collect the children from school and arrange for their attendance at extra-curricular activities, whilst the husband would have to place the children in child care until he was able to collect them some time around 5.00 pm in the afternoon.
The husband indicated that he would pay the cost of child care for those afternoons the children were to spend time with him when he could not collect them immediately after school.
(f) the capacity of:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs.
The husband asserted that he would cease work on Friday evenings and would ensure that he was available to care for the children on the evenings and days they were in his care, both during term time and school holidays.
The wife maintained that the husband’s capacity to provide a stable routine for the children was in question. The husband conceded that in the past he had regularly placed the children in the care of his relatives.
I accept that the children benefit from interaction with extended family, but also accept that the husband did not place the same emphasis upon a stable routine for the children as the wife.
The evidence indicates that the wife has in the past shown a greater capacity to provide for the needs of the children and continues to provide substantially for all their needs.
Currently the husband has a greater capacity to provide assistance to the children with homework because of his better English language skills.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Both parties are of Vietnamese background. Both observe the Buddhist religion and involve the children in the activities and understanding of their cultural background. Whilst the husband sought orders in open general terms requiring that the children spend time with him for ancestors’ special occasions, the wife maintained that these could be celebrated and acknowledged adequately during the time they spend time with the husband on weekends or school holidays. I am not satisfied that an open non-specific general order about special occasions would promote the children’s best interests. Such an order may be too disruptive. Each of the parents can make suitable arrangements during the time the children are in their care to acknowledge, celebrate and participate in family cultural and religious activities.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this case it would be preferable to make an order which is least likely to lead to further proceedings in relation to the children. The Family Consultant recommended a gradual increase in time spent with the husband.
Section 65DAA - Substantial and significant time
The Court is required to consider whether the children spending substantial and significant time with the husband would be in their best interests and is reasonably practicable.
I take into account the definition of substantial and significant time set out in sub-section (3). The Court is required to have regard to the factors set out sub-section (5) which deal with reasonable practicalities.
There is no evidence to suggest that the distance between the parents’ home is significant.
The husband has not implemented arrangements which would increase his time with the children on Friday evenings. The husband presently works from approximately 8.00 am until 4.30 pm in his full time employment at University and also undertakes employment in the evenings as a courier. From a practical point of view the children would spend increased time in after school care waiting for their father to collect them.
The evidence of the husband about the steps he had taken to cease working on Friday evenings when the children were to spend time with him was not satisfactory. His evidence was inconsistent. At the time of the trial and notwithstanding the Family Consultant’s report of early May 2007, the husband could only say that “eventually” or in “the future” he did not propose to work on Friday evenings.
I also take into account that it was conceded that the wife had been found guilty of contravening an earlier order in relation to the husband spending time with the children.
The relationship between the parents is strained. They do not have a good capacity to communicate with each other to resolve difficulties that might arise.
The Family Consultant’s report sets out the risk of the children, in particular the daughter, rejecting any proposed change in the arrangements. Any change may impact adversely on the relationship between the daughter and the husband in particular.
As previously discussed paragraphs 34 and 35 of the Family Report described the daughter expressing a preference to leave the current arrangements in place and providing consistent reasons for her view. Similarly, the son expressed the view that he liked the current arrangement and did not wish to change.
At paragraph 34, the daughter reported that her father was “often at work and that when he was not at work he was often resting, or doing housework or just unavailable to her and [the son].”
Paragraph 44 of the Family Report emphasises the basis for the daughter’s view and the strength of her view.
“44.The children have both expressed a reluctance to spend more time with the father than is currently the case. Their view is that he is not available to them during the time they do spend with him and that they simply prefer to spend time with the mother. [The daughter] in the past has also refused to have contact with the father and I suspect she is capable of challenging her parents if she feels strongly about an issue. That is, there is a possibility that an order of the Court that is not consistent with her views may pose difficulties for the parents, and [the daughter], in complying with the order.”
The daughter’s concerns form part of the basis for the wife’s opposition to increasing the time the husband spends with the children.
In the Family Report final sections, Mr R summarises the matters he saw as significant as follows:
“46.Generally, I am of the view that the father’s proposal to increase the time he spends with the children to incorporate more involvement in their schooling has some merit. He is an educated man with a strong work ethic who has much to offer his children in this regard. The mother’s objection to his proposal is based on several beliefs. First, that he seeks to increase his time with the children solely to avoid child support obligations and/or to gain leverage in property negotiations. Second, that he is not available to the children when they are with him. Third, that the children would need to attend after school care on the school days they would spend with him. And finally, that the children are better off in her care.
47.In relation to her first objection stated above it is my belief that the father is committed to his children’s welfare and is genuine in his wish to be more actively supportive of the children’s education. In relation to the second objection the father has stated that he would not engage in casual work on these school evenings. In relation to the third objection it may well be the case that the children are required to attend after school care. It is also possible that alternative arrangements could be considered. For example, the mother could collect the children from school and the father collect the children from her home after finishing work. Another alternative may be that [the paternal aunt] collects the children from school, though I am uncertain of her availability to undertake this. In relation to the mother’s final objection it is in my opinion a view that diminishes the potential contribution of the father to the care of the children.
48.If it is the decision of the Court to increase the amount of time the children spend with the father in accordance with the father’s proposal then it will be important for the father to ensure that he is available for the children at these times and that he does not undertake casual employment at these times. It will also remain important for him (and his family) to ensure that the children are not exposed to any negative comments regarding their mother, her decision to end the marriage, or her involvement and views in relation to a pending property settlement.
49.In considering the father’s proposal to spend more time with the children it may be appropriate to gradually increase time with the father during the school week bearing in light of the expressed views of the children and their possible reluctance to accept such a change.”
Mr R’s final recommendations were as follows:
“50.It is recommended that the children continue to live with the mother.
51.It is recommended that the children spend time with the father as follows:
i.)each alternate weekend from the conclusion of school on Friday afternoon until the commencement of school on Monday morning;
ii.)in each other week from the conclusion of school on Monday afternoon until the commencement of school on Tuesday morning on the condition that the father not engage in casual employment on these occasions’
iii.)from the commencing of the school year in 2008 that ii.) above be extended to include over-night Tuesday until the commencement of school on Wednesday morning;
iv.)that the father spend school holiday time with the children commensurate with him utilizing his own leave entitlements to care for the children during school holiday time;
v.)that the father spend time with the children on special occasions such as birthdays, father’s day and other occasions of cultural significance.”
Conclusions
I carefully consider these views expressed by Mr R in light of the evidence I have heard from both of the parties. I am satisfied that the wife’s concern about the husband not being available on Friday evenings when he attended to his employment was a genuinely held and appropriate concern. The wife’s concern about the children having to attend after-school care on the days they would spend with the husband was also appropriate.
I also accept that the views held by the daughter about not changing the current arrangements were genuinely held and based upon her real concerns.
Weighing all of the factors, and in particular the children’s expressed views and the assessment by the Family Consultant, it is in the children’s best interest to cautiously increase the time that the husband will spend with the children so that the children adapt without any anxiety.
Bearing in mind the children’s ages and the husband’s expressed commitment not to work on Friday evenings, the first initial increase will be the time that the children can now spend with the husband on Friday evenings. Once that routine is established it will be appropriate to gradually increase the time to allow for after school and overnight on alternate Mondays. This will give the husband an opportunity to participate in after school routine and assisting them in their normal activities on Tuesday morning.
I therefore propose to provide for the husband to spend time with the children each alternate weekend from Friday after school until the commencement of school on Monday during term time for the rest of 2007 and first two terms in 2008 thereafter increase it so that on the intervening alternate Mondays the husband spends time with the children from after school on Monday to the commencement of school on Tuesdays. It is also appropriate for the husband to have time with the children during the school holidays provided that he is able to obtain appropriate leave from his employment.
Taking into account the genuine concerns of the wife, the expressed views of the children and the husband’s capacity to provide for the children I am satisfied that this arrangement will encourage the relationship between the husband and the children and is overall in their best interests.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 17 July 2007
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Family Law
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