Tucker and Tucker
[2008] FMCAfam 54
•7 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TUCKER & TUCKER | [2008] FMCAfam 54 |
| FAMILY LAW – Parenting orders – previous orders between same parties – Rice and Asplund rule – whether material change in circumstances warranting variation of previous orders – variety of circumstances constitute sufficient material change to warrant consideration of application to vary – application to vary existing very general order granted to reflect existing circumstances. FAMILY LAW – Parenting orders – consideration of primary and secondary factors – time spent – twelve hour shift roster – variation of existing order granted to reflect existing circumstances. |
| Family Law Act 1975 (Cth) ss.60CC(2), 60CC(3), 65DAA(1)(a), 65DAA(1)(b) Family Law Amendment (Shared Parental Responsibility Act) 2006 (Cth) |
| In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 Freeman and Freeman (1986) 11 Fam LR 293 Burton and Burton (1979) FLC 90-622 |
| Applicant: | MS TUCKER |
| Respondent: | MR TUCKER |
| File No: | NCC 1833 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 26 September 2007 |
| Date of Last Submission: | 26 September 2007 |
| Delivered at: | Sydney (by telephone link to N) |
| Delivered on: | 7 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bateman |
| Solicitors for the Applicant: | Smith Dunlop Lawyers |
| Respondent: | Appeared in person |
The COURT ORDERS BY CONSENT:
That the children of the marriage B born in November 1990 and S born in March 1993 (‘the Children’) live with the Mother and Father.
That the Children live and spend time with the Father at all times as the Mother and Father agree and failing agreement as follows:
(a)In even numbered years from 12:00pm the mid point day of the Christmas school holiday to commencement of school at the end of Christmas school holiday;
(b)In even numbered years from 3:00pm Christmas Day to 12:00pm Boxing Day;
(c)In odd numbered years from after school the first day of the Christmas school holiday to 12:00pm the mid point day of the Christmas school holiday;
(d)From 6:00pm Father’s Day Eve to 5:00pm Father’s Day each and every year;
That Order 1(b) be suspended:
(a)From 6:00pm Mother’s Day Eve to 5:00pm Mother’s Day each and every year (albeit a weekend when the Children would be living with their Father);
(b)In odd numbered years from 3:00pm Christmas Day to 12:00pm Boxing Day.
That the parent with whom the Children are not living at the times of the Children’s respective birthdays spend 3 hours with the Children on those occasions.
That neither party say unkind or unpleasant things about the other party.
That the party having care of the Children advise the other if a Child or the Children at that time becomes seriously ill or suffers any accident or requires attention from any medical practitioner or at an emergency department of a hospital, or if a Child is admitted to hospital, and such notification to be as soon as practicable and in any event within 48 hours of such illness, accident, consultation or admission for treatment.
That each party forthwith enroll in and attend at a Parenting After Separation course approved of by the Director of Child Dispute Services, Newcastle.
That pursuant to section 65DA(2) of the Family Law Act, 1975 (Cth) the particulars of the obligations that these orders create and the particulars of consequences that may follow if a person contravenes those orders are set out in Annexure A and those particulars are included in these orders.
AND NOTES THAT:
(a)It is the mutual intention of the parties that by these orders they will achieve a framework for a predictable regime for the Children to spend time with each parent and with each other.
(b)B proposes in 2008 to seek an apprenticeship and the arrangements sought by these orders will need to be applied by the parties with some degree of flexibility in that regard.
ORDERS:
That subject to orders (1) to (8) above, and order (10) below, the Children are to spend time with:
(a)the Mother, at times when the Father is rostered to work under the twelve hour shift roster under which the Father is employed at the time these orders were delivered; and
(b)the Father, at times when the Father is not rostered to work under the twelve hour shift roster under which the Father is employed at the time these orders were delivered.
The parents may vary order (9) above by agreement for any period of time to be spent with either parent.
The Father is to provide the Mother with any twelve hour shift roster (and changes to the roster) provided to the Father by his employer within seven days of the provision of the roster (or changes to the roster) to the Father by his employer.
The parents will have equal shared parental responsibility for the Children.
IT IS NOTED that publication of this judgment under the pseudonym Tucker & Tucker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
NCC 1833 of 2007
| MS TUCKER |
Applicant
And
| MR TUCKER |
First Respondent
REASONS FOR JUDGMENT
Introduction
In May 2005 Ms Tucker[1] and Mr Tucker[2] reached agreement on parenting and property matters and consented to Terms of Settlement in the Maitland Local Court.[3]
[1] “Mother”.
[2] “Father”.
[3] “Local Court Orders”.
Order 3 of the Local Court Orders provides as follows:
“THAT the Husband and the Wife exercise shared care of the children of the marriage, namely B born in November 1990 and
S born in March 1993. It is noted that such shared care will be equal between the parties.”[4]
It would appear that the Local Court Orders reflected arrangements which had been place since the Mother and Father separated in September 2004.
[4] The Husband is the Father and the Wife is the Mother. The children will be referred to as the “Oldest Child” and “Youngest Child” respectively, and together as the “Children”.
In June 2007 the Mother applied to this Court to vary order 3 of the Local Court Orders.
By the time the matter came on for hearing the parties had narrowed their differences to one disputed issue, and consent orders and notations had been agreed on other than the disputed issue. That disputed issue was whether the time spent by the Children, then aged 16 and 14 respectively, was to be spent:
a)week about with the Mother and Father, as proposed by the Mother;[5] or
b)with the Father when he was not working, and with the Mother when he was working, the times at which the Father was working or not working being determined by his twelve hour shift roster, as proposed by the Father.[6]
[5] “Mother’s Proposal.”
[6] “Father’s Proposal.”
Issue
The issue for the Court to determine is how much time each parent is to spend with the Children, and more particularly, when that time is to be spent, having regard to the primary and secondary considerations in s.60CC(2) and (3) of the Family Law Act 1975 (Cth).[7]
[7] “FL Act”.
However, a preliminary issue arises. That is whether there ought to be any change to the Local Court Orders, having regard to the Rice and Asplund rule.[8]
[8] In the Marriage of Rice and Asplund (1978) 6 FamLR 570 (“Rice and Asplund”).
In determining the issues it will be necessary to deal with the Rice and Asplund rule issue before considering, if necessary, the time spent issue.
Rice and Asplund rule
An application for variation of previous orders must pass a threshold test under the Rice and Asplund rule ‑ that is, demonstrate a material change in circumstances.[9] The Rice and Asplund rule operates to prevent renewed or ongoing litigation concerning parenting orders where no new circumstances are brought before the Court.[10] In McEnearney, the Family Court spoke of "no startling new circumstances that can be brought before the court".[11] Although every case depends on its own facts and ultimately the merits of those facts, certain circumstances have been held to constitute material changes in circumstances. They include:
a)marked adverse behavioural changes in a child;[12]
b)remarriage and recovery from illness of a non‑live with parent;[13]
c)remarriage and stabilisation of accommodation of the non‑live with parent and commencement of school by a child;[14]
d)remarriage of the non‑live with parent, enabling that parent to provide a proper family environment;[15]
e)child sexual abuse;[16]
f)relocation;[17] and
g)contravention of orders.[18]
[9] Rice and Asplund; SPS & PLS [2007] FMCAfam 907; SRK & CLP [2007] FMCAfam 961.
[10] Freeman and Freeman (1986) 11 Fam LR 293 at 297 per Strauss J; McEnearney and McEnearney (1980) FLC 90-866 at 75, 499 per Nygh J (“McEnearney”).
[11] McEnearney at 75,499 per Nygh J.
[12] Burton and Burton (1979) FLC 90-622 at 78, 217 per Evatt CJ, Ellis SJ and Smithers J.
[13] Houston and Sedorkin (1979) FLC 90-699 at 78, 732 per Marshall SJ.
[14] Rice and Asplund at 573 per Evatt CJ.
[15] F and N (1987) FLC 91-813.
[16] McL and McL (1991) 15 Fam LR 1.
[17] D & M [2005] FMCAfam 89.
[18] See, for example, In the Marriage of Paskandy (2005) 33 Fam LR 509; [2005] FamCA 755.
It is pertinent to note, given the date of the Local Court Orders (May 2005), that continuation of the Rice and Asplund rule in relation to orders pre‑dating the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth)[19] is expressly provided for by the FL SPR Act.[20]
[19] “FL SPR Act”.
[20] FL SPR Act, Schedule 1, part 2, clause 44.
Because each case depends on its own facts and ultimately the merits of those facts, the circumstances which might be held to be material changes in circumstances can never be closed categories for the purposes of the Rice and Asplund rule.
Changes in material circumstances
The following can be said to be changes in circumstances which might arguably be sufficient to warrant the Court considering a variation of the Local Court Orders:
a)that the Oldest Child is seeking to enter into an apprenticeship;[21]
b)that the Oldest Child is eligible to obtain his driver’s licence from November 2007;[22]
c)that the Youngest Child has had changes in behaviour and grades at school;[23]
d) the Mother and Father divorced on 15 December 2006;[24]
e)there has been a change in the Mother’s and Father’s attitude toward co-operation concerning the Children, [25] in circumstances where the existing order[26] is very general and not specific as to actual time spent by the Children with the parents;
f)the parties have consented to other orders varying the Local Court Orders; and
g)both the Mother and Father may have entered into new relationships, but they may not constitute a re-partnering as such.[27]
[21] An agreed fact between the parties: see Notation B of Proposed Minute of Orders of the Mother tendered by consent at the hearing and signed by the Mother and Father.
[22] Affidavit of Ms C, sworn 27 August 2007, para 12 (“Ms C's Affidavit”).
[23] Discussed in more detail at paras 28 and 52-53 below.
[24] Mother’s Affidavit, sworn 6 June 2007, para 5 (“Mother’s Affidavit”); Father’s Affidavit, sworn 27 August 2007, para 2 (“Father’s Affidavit”).
[25] See, for example, paras 46-48 below.
[26] Order 3 of the Local Court Orders set out in para 2 above.
[27] The evidence was equivocal in this regard, particularly concerning any new relationship that the Mother might have entered into.
Rice and Asplund rule - consideration
In examining the changes set out above, the Court notes that:
a)the fact that the Oldest Child may be entering the workforce and obtaining a driver’s licence is a material change in circumstances because it means that the Oldest Child is likely to be significantly more independent, less accountable to his parents and less susceptible to their control;
b)entering the workforce is as much a material change as is commencing school;[28]
c)the Youngest Child’s behavioural changes, which include bullying other children at school and recent adverse grades, constitutes a material change in circumstances warranting consideration as to whether the existing orders ought to be varied;
d)the divorce between the parents in December 2006 is also a material change in circumstance due to its finality and the possible effect that this may have on the Children;
e)the changes in attitudes to co-operation between the parties are also a material change in circumstances by reason of the generality of the existing Local Court Orders, which in the absence of co-operation between the parties, may be rendered unworkable;
f)the fact that other orders have been consented to which if agreed to by the Court will alter the existing arrangements under the Local Court Orders by making more specific arrangements with respect to the care of the Children is also a material change in circumstances, both of itself and because it recognises, at least implicitly, that the breakdown in co-operation between the parties requires new and more specific orders to be in place;
g)any entry into new relationships by the Mother and Father is not of itself a material change in circumstance, particularly where there has not been a formal re-partnering (at least on the evidence in this case), because it can be expected that people who are separated and divorced will enter into new relationships, more or less frequently, and in the absence of a formal re-partnering (either by way of cohabitation, marriage or de facto relationships being entered into) to hold that a new relationship was a material change in circumstance sufficient to warrant variation of existing orders would be to open this Court to a flood of possible applications for variation orders. That is not to say, on the facts of a particular case, that a new relationship might not be a material change in circumstance. However, on the facts of this case, there is insufficient evidence to indicate that any new relationships which might have been entered into are such as to constitute a material change in circumstance for the purposes of the Rice and Asplund rule.
[28] Rice and Asplund at 573 per Evatt CJ.
The Court is satisfied that the changes in circumstances referred to in subparagraphs (a) to (f) of the preceding paragraph constitute material changes in circumstances sufficient to warrant the Court considering the application to vary order 3 of the Local Court Orders.
Determination of parenting order issues – principles and procedure
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[29] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[30] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode are as follows:
[29] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[30] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[31]
[31] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Equal shared parental responsibility
The Family Law Act 1975 presumes that there will be equal shared parental responsibility. Although there is no provision to that effect in the orders on which the Mother and Father have agreed it seems that there is no disagreement that there ought to be equal shared parental responsibility, and the presumption applies, and there will be an order to that effect.
Time spent
The Court must consider whether the Children spend equal time with each parent, that being presumed to be in the best interest of the Children.[32] Equal time with each parent is qualified by a requirement that it be reasonably practicable.[33]
[32] FL Act s.65DAA(1)(a).
[33] FL Act s.65DAA(1)(b).
The Mother’s proposal contemplates the Children spending week about with each parent. Nominally at least this constitutes equal time. The Father’s proposal that the Children spend time with him when he is not working under his twelve hour shift roster also equates to an arrangement which is almost, but not quite, equal time, it seemingly resulting in the Children spending fourteen to sixteen days per month with the Father.[34] Nominally, at least, the Father’s proposal equates to equal time, or substantial and significant time, if, because of the Father’s shift work arrangements equal time is not reasonably practicable.
[34] Mother’s Affidavit, Annexure B.
The Mother’s Proposal for week about time spent would result in the Children nominally spending time with the Father during periods he is on shift each week, especially when he is working night shift. The Mother sought to overcome, and perhaps not unnaturally, take advantage of this, by offering in her evidence “for them [the Children] to come back and spend those two nights with me.”[35] That offer recognises the practical reality: that the Mother’s proposal would see the Children spending significantly more time with the Mother each week, the alternative being that they spend unsupervised time at the Father’s house every week whilst he works night shift.
[35] Transcript at 11.
Under the Mother’s Proposal the Father’s equal time would be eroded by his shift work roster: the Mother’s Proposal will result in the Children actually spending significantly more time with the Mother than with the Father, because the Mother will be spending time with the Children whilst the father is working during what would, under her proposal, be the Father’s week to spend time with the Children. Alternatively, even if the Children went to the Father’s and spent time at his residence whilst the Father was not there, the Father would not be spending time with the Children. Finally, the Children would be unsupervised whilst at the Father’s residence for all of the time that the Father was not there, which would be for about half of the time that they are nominally spending time with the Father.[36]
[36] As to which see paras 59-60 below.
To determine which of the competing proposals of the Mother and Father are in the best interests of the Children it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the Family Law Act 1975.[37]
[37] FL Act ss.60CC(2)(3), (4)(4A) and 60(B).
Twelve Hour Shift Roster
Central to a consideration of the proposed variation to the Local Court Orders is a consideration of the 12 hour shift roster worked by the Father as a coal mine plant operator.
The Mother described the 12 hour shift roster system as follows:
“Mr Tucker works as a plant operator at M on a panel roster system. He works a predetermined consecutive number of 12 hour day shifts or, alternatively, 12 hour night shifts. He generally is provided his roster for the whole of a year towards the end of the preceding year. For example, he was provided his roster for January to December 2006 by the end of December 2005.
A day shift on the panel roster system is for the period 6:30am to 6:30pm. When Mr Tucker works a day shift he would leave his house about 5:30am and return home about 7:30pm. If the children are staying at Mr Tucker’s house and he is to work a day shift, he returns the children to me about 7:30pm the evening before the day shift.
A night shift is for the period 6:30pm to 6:30am. Similarly, when Mr Tucker is required to work a night shift he leaves his home about 5:30pm and returns to his home about 7:30am. If the children are staying at Mr Tucker’s house and he is scheduled to work a night shift, he delivers the children to school in the morning and the children then take the bus to my house after school. If Mr Tucker works a consecutive number of night shifts, as he finishes work at 7:00am, the children generally take the bus to his house after school on that day.
The children live with Mr Tucker each day he is not working. For example, during the week of March 2007, Mr Tucker worked a day shift on Monday 5 March, Tuesday 6 March and then a night shift on Friday 9 March and Saturday 10 March. The children stayed at Mr Tucker’s house from Friday 2 March to Sunday 4 March. After Mr Tucker’s day shift on Tuesday 6 March, Mr Tucker collected the children from my house at 7:30pm. The children then returned to my house after school on Friday 9 March and stayed with me until I dropped them off at school the morning of Monday 12 March.”[38]
[38] Mother’s Affidavit, paras 13-16.
The Father agreed with the description of the 12 hour shift roster set out by the Mother, save for the final sentence of paragraph 15 of the Mother’s Affidavit, saying that he normally picked the Children up from school.[39]
[39] Father’s Affidavit, para.6.
In her evidence, the Mother describe the 12 hour shift roster thus:
They would spend Monday night with me, Tuesday night with me. Then the father would collect them at 3:30 from school on Wednesday. He would then have them Wednesday night, Thursday night, but only till 7:30pm Thursday night in which I would then collect them from his home 7:30 Thursday night. They would then spend Thursday night with me, Friday night, Saturday night with me and then he would collect them from my place at 7:30pm on Sunday night. I would then have them Sunday night, Monday night, Tuesday night until 3:30pm on the Wednesday, which I’ll collect them from school. Then I would have them Wednesday night, Thursday night. He would then collect them from school Friday afternoon at 3:30 and have them Friday night, Saturday night, Sunday night until 7:30 in which I would collect them from his house. I would then have them Sunday night, Monday night and Tuesday night only till 7.30 when he would collect them from my place at 7.30. Then he would have them Tuesday night, Wednesday night, Thursday night and I would have them Tuesday night, Wednesday night, Thursday night and I would then collect them from school Friday at 3.30. I would then have them Friday, Saturday, Sunday nights. He would collect them from school 3.30 on Monday and have them Monday night and until 7.30pm on the Tuesday night on which I’ll collect them. Then I would have them Tuesday night, Wednesday night and Thursday until 7.30 when he would collect them. Then he would have them Thursday night, Friday night, Saturday night, Sunday night and I would collect them from school on the Monday and that’s the four week cycle, and no week is the same.”[40]
[40] Transcript at 9-10.
The Mother (and more particularly so her Counsel) made much of the alleged difficulties of understanding and implementing the 12 hour shift roster for the purposes of time spent and changeover as the source of problems and difficulties for the Children, and in particular the Youngest Child. However, the impression created at the hearing was, as the Court stated at the time, that the Mother “understood it [the 12 hour shift roster] perfectly and she related it [in her evidence] in the way that made me [the Federal Magistrate] understand it ….she explains it in very clear terms and very simply.”[41] The Court’s observation was made in response to an exaggerated submission from Counsel for the Mother that the 12 hour shift roster was “a bit like trying to read the Rosetta Stone,” and that it had “changes and permutations in the roster itself.”[42] If that submission were correct it is difficult to understand how it is that the roster survives as a standard twelve hour shift roster in a coal mining environment. The Father did not accept that the roster was “very complicated’ and said he fully understood it.[43]
[41] Transcript at 26.
[42] Transcript at 26.
[43] Transcript at 19.
The submission of Counsel for the Mother ignores the evidence. On the evidence, the roster is perfectly clear and understandable, and is understood by both the Mother and the Father.[44]
[44] See paras 22-24 above, and also Ms C's Affidavit, para 11.
The 12 hour shift roster is planned a significant time in advance.[45] A problem has arisen in this case because the Father has not provided the 12 hour shift roster to the Mother as soon as he has obtained it.[46] The Father’s failure to provide the roster is a matter to be considered further as to the Father’s fulfilment and facilitation of parental responsibilities.[47] For practical purposes, the issue of roster provision by the Father to the Mother can be resolved by the Court ordering that the Father provide the Mother with the roster (and any changes to the roster) within a set number of days, say seven, of his receipt of the roster (or any changes to the roster).
[45] Mother’s Affidavit, para 13; Transcript at 20.
[46] Mother’s Affidavit, paras.33-34; Transcript at 20-21.
[47] See para.70 below.
There is no evidence that the roster lays behind the adverse behavioural changes in the Youngest Child or the reduction of his school grades. There appears to have been no problem either with the roster or in regard to the Youngest Child until 2007. Significantly, those problems emerged after the parents’ divorce in December 2006. The Court considers it more likely that the divorce is the source of the Youngest Child’s behavioural difficulties, together with the behaviour of the parents towards each other since then, rather than difficulties arising from the 12 hour shift roster, and its implementation in relation to time spent and changeover.
It is against that background with respect to the 12 hour shift roster that the Court turns to deal with the merits of the variation to the Local Court Orders sought by the Mother and the Father’s proposal that there be no change to the existing order so far as it relates to time spent and changeover.
Primary considerations – section 60CC (2)
Benefit to the Children of having a meaningful relationship with both parents - s.60CC(2)(a)
There can be no doubt that the Children ought to have the benefit of a meaningful relationship with both parents. In the circumstances of this case, there is very little to indicate that the Children have other than a meaningful relationship with both parents, which is not to say that the relationships are without difficulty.
The Mother and the Father deal with all of the normal incidences in their Children’s lives on a daily basis: the provision of food and shelter, assisting with homework (at least in the case of the Mother on the evidence),[48] and taking the Children to school and sporting activities. There is evidence that the Mother has, and intends to, take the Children overseas, and whilst the Father impliedly criticises the amount of travel undertaken by the Mother, there can be little doubt that overseas travel with the Mother is part of a meaningful relationship between her and the Children.[49]
[48] Mother’s Affidavit, para 35.
[49] Mother’s Affidavit, paras 41-42; Father’s Affidavit, para 31.
The Father evinces a meaningful relationship with the Children through a range of outdoor and physical activities including diving, fishing, remote control car activities and mechanical pursuits.[50] The Father also says that he speaks to the Children everyday when they are not spending time with him.[51]
[50] Father’s Affidavit, para.7; Ms C's Affidavit, para.4-10.
[51] Father’s Affidavit, para.8.
The Court considers that the Children have, under the existing arrangements, developed, possibly to varying degrees, meaningful relationships with both parents. On the basis of this consideration, at least, there appears little reason to change the existing time spent and changeover arrangements.
Risk of harm to the Children – S.60CC(2)(b)
This is not an issue in this case.
Other considerations – section 60CC(3)
Views expressed by the Children – s.60CC(3)(a)
The Court did not hear from the Children. The Court refused the Father’s request made at the hearing for a Family Report to be prepared, and did so having regard to:
a)the advanced stage of the proceedings;
b)the limited availability to this Court of resources for the preparation of Family Reports; and
c)the delays which would ensue from ordering the preparation of a Family Report.
There was therefore no admissible evidence of the views of the Children.
Relationship of the Children to parents and other significant persons –s.60CC(3)(b)
As indicated above, the Children and parents have a meaningful relationship.[52]
[52] See paras 30-33 above.
There was little evidence concerning other significant persons in the Children’s lives. The Mother gave evidence of having a sister in S.[53] There was no evidence of the nature of the relationship, if indeed there is a relationship, between the Children and the person briefly referred to and described as the Mother’s “boyfriend.”[54]
[53] Transcript at 11.
[54] Father’s Affidavit, para 8.
There was some evidence that the Children had relationships with other significant persons on the Father’s side. The Father gave evidence that his sister and her family live in the same street, and that a 21 year old male nephew has interaction with the Children.[55] The Father also gave evidence that there were “plenty of relatives living close by should they [the Children] have needed anything”.[56] The Mother gave evidence that the Father had “a lot of family locally in town”, who were readily contactable, and who would be able to assist in any emergency.[57] The Mother also gave evidence that she had a sister in town, and that she did not live far away.[58]
[55] Father’s Affidavit, para 14.
[56] Father’s Affidavit, para 15.
[57] Transcript at 11.
[58] Transcript at 11
There was evidence that the paternal grandfather had also spent time with the Father and the Children working on Ms C’s vehicle.[59]
[59] Ms C's Affidavit, para 8.
Ms C, with whom the Father appears to have a relationship, also gave evidence of her involvement with the Children since January 2007. This included spending time with them every second weekend and most school holidays in company with the Father. Ms C has been camping with the Father and the Children, as well as attending the Oldest Child’s football games for S team(when he is staying with the Father), and every game when he plays with the N team.[60]
[60] Ms C's Affidavit, paras 9 and 10. The Oldest Child is a member of the N team: Ms C's Affidavit, para 9.
Ms C’s evidence, which was not challenged by Counsel for the Mother, there emerges a clear sense of a close relationship between the Father and the Children, there being evidence that the Father and the Children:
a)participate in diving activities together;
b) go fishing together regularly;
c) that the Oldest Child has been building a chicken coup at the Father’s home under the Father’s guidance;
d)that the Youngest Child goes kite flying with the Father at the local park;
e) the Children race remote control cars with the Father;
f)the Father, the paternal grandfather, and the Children have been involved in mechanical activities together;
g)the Father, together with Ms C, and the Children have been camping together regularly; and
h) the Father, Ms C and the Youngest Child support the Oldest Child in his football activities.[61]
[61] Ms C's Affidavit, paras 5-10.
The Father also gave evidence that he believed in having “a very open, honest relationship” with the Children, given that they are “mature young men with their own opinions and will soon be adults making their own way in the world” and that “an introduction to decision making is ….an important learning experience.”[62]
[62] Father’s Affidavit, para 29.
What emerged from the evidence was that the Children seem to have an open and well-developed comfortable relationship with the Father. It also appears that they have a comfortable relationship with the Father’s relatives in S, as well as Ms C. The Court has no doubt that the Children have, as indicated above, a meaningful relationship with the Mother, but on the evidence before the Court, it cannot be said to be as positive as that with the Father.
The nature of the relationship of the Children to their parents, and to other significant persons, is, on the evidence, such that the Court can see no reason to change the existing arrangements with respect to time spent and changeover.
Parental facilitation and encouragement of a close and continuing relationship between the Children and other parent – section 60CC(3)(c).
The parents are not discouraging a close and continuing relationship between the Children and the other parent. Nor, does it seem, they are actively encouraging or facilitating a close continue relationship between the Children and the other parent. Indeed, since the parents divorced in December 2006, there have been a litany of minor issues between the parents (which need not be repeated in detail in these Reasons for Judgment), but which in the Court’s view have not promoted the parental facilitation and encouragement of a close and continuing relationship between the Children and the other parent. In the course of the hearing the Court described the parents’ conduct as “just being narky with one another.”[63] The parents being narky with one another has, in the Court’s view, undermined their capacity as parents to facilitate a close and continuing relationship between the Children and the other parent.
[63] Transcript at 26. The word “nark” was originally a slang noun for a police decoy or spy, but in Australia was used to refer to an annoying person or thing, hence the adjective, narky, meaning bad-tempered or irritable: The Concise Oxford Dictionary of Current English (Seventh Ed.) at 673.
The Mother’s proposal for week about time spent will not in the Court’s view facilitate a close and continuing relationship between the Children and the Father. This is because it will, in real terms, result in less time being spent by the Children with the Father. Although it is the quality of the time that often characterises whether a relationship is close and continuing, it is clear in this case that the quality of the time that the Children do spend with the Father at present is significant, and there is nothing in the evidence in this case which warrants a diminution in that time. Further, a diminution in that time, and the consequent increase in time spent with the Mother, is likely to result in both parents (but particularly the Father) not taking further steps to facilitate and encourage a close and continuing relationship between the Children and the Mother because the Father is likely to take the view that the Mother is advantaged by the Father’s diminution in time spent with the Children, and there is likely to be a further deterioration in the relationship between the parents with a consequent effect upon the Children.
In the Court’s view there is nothing in this factor which warrants a change in the existing time spent arrangements. It is to be hoped that the parents will, of their own volition, and perhaps as a consequence of attending the Parenting After Separation course that they have agreed to attend, adopt an approach to parental facilitation and encouragement of a close and continuing relationship between the Children and the other parent which is in the best interests of the Children, and not a continuance of their existing narky relationship.
Likely effect of changes in Children’s circumstances - section 60CC(3)(e)
In overall terms, the Mother’s proposal for time spent week about with each parent will have the practical effect that the Children will see less of the Father. Having regard to the best interests of the Children, and the nature of the existing relationship between the Father and the Children as set out above,[64] the Court does not consider that a reduction in the time spent with the Father by the Children is in the best interests of the Children.
[64] See paras 42-44 above.
Taken separately, it is apparent that with respect to the Oldest Child any order made by this Court is likely to have little effect insofar as it changes the existing arrangements. The Oldest Child is old enough, and is likely to be in a position by reason of employment and mobility, to make his own arrangements, and the parties do, to their credit, seem to recognise that.[65] The Mother complains that she sees little of the Oldest Child on occasions when he is staying with her because of things like football training.[66] That of course breaks both ways as the Father does not see the Oldest Child when he spends time with him and attends football training.[67] However, the Father’s approach appears to be fundamentally different, recognising the reality of football training, and, on the evidence, taking pride in the Oldest Child’s achievements in playing for the local team and being a member of the
N team.[68] By contrast, the Mother almost complains about the fact that a young man, who is obviously a talented footballer, has to attend training, and that as a consequence she does not see him. Whilst the Court appreciates the nature of the complaint that the Mother seems to make, it is nevertheless the case that it puts the Mother’s interests before the best interests of the Oldest Child.
[65] See notation B to Mother’s Minute of Proposed Orders.
[66] Mother’s Affidavit, para 37.
[67] Father’s Affidavit, para 17.
[68] Ms C's Affidavit, para 10.
Although the evidence is limited, and lacks detail, the Court accepts that the Youngest Child has exhibited adverse behaviour at school, including bullying and poor grades.[69] On the unchallenged evidence of the Father his behaviour is not a problem when the Youngest Child is in the presence of the Father or the Father’s family, including younger children.[70] Nevertheless, the Father says that the behaviour at school is a problem about which he has become more vigilant.[71]
[69] Mother’s Affidavit, paras 35-36; Father’s Affidavit, paras 18-19.
[70] Father’s Affidavit, para 33.
[71] Father’s Affidavit, paras 32-33.
The Mother argues that the Youngest Child’s problems are a consequence of his going backwards and forwards between the Mother’s and Father’s households every couple of days, and highlights a difficulty with the Youngest Child not doing his homework at his Father’s house, and leaving the doing of homework until he returns to the Mother’s house.[72] However, the Youngest Child’s behavioural changes did not emerge until 2007. Travelling backwards and forwards every couple of days between the parents’ houses does not appear to have adversely affected the Youngest Child during 2004, 2005 or 2006. The problems only emerge after the parents’ divorce in December 2006. In the Court’s view, the divorce, and the finality it brings, is more likely to have been the cause of the Youngest Child’s problems, rather than it being a consequence of a roster system which had seemingly worked without problem for the two years following separation. The finality of the divorce between the parents must also have been brought home to the Youngest Child by the appearance in the Father’s life of Ms C from late 2006.[73]
[72] Mother’s Affidavit, para 40.
[73] Ms C's Affidavit, para 2.
On the Mother’s evidence the Youngest Child at least presently gets the homework done each week.[74] If he stays at the Father’s for an entire week that may not occur if the currently alleged homework pattern were not to change. The Court therefore considers that, absent positive steps to ensure that the Youngest Child does his homework whilst at spending time with the Father, there is a risk that a week about time spent arrangement might exacerbate the homework problem.
[74] Mother’s Affidavit, para 35.
As indicated above, the Court’s view is that the practical effect of the Mother’s proposal, namely, that the Youngest Child would spend less time with his Father, is not a desirable outcome given the nature of the relationship between the Father and both Children, and given the evidence of the nature of the activities undertaken whilst the Children are with the Father. It may be that a withdrawal from those activities, or a lessening of time spent on those activities, which would be the inevitable result of the Mother’s proposal, might exacerbate rather than reduce the problem with the Youngest Childs’s behaviour. The Court considers that the behavioural problems of the Youngest Child are more likely to be resolved by both parents being more vigilant in relation to the Youngest Child’s conduct, and both parents co-operating with respect to dealing with the Youngest Child’s conduct, rather than putting in place orders which have the effect of reducing the amount of time the Youngest Child spends with the Father. On the evidence, the Court notes that it is only the Father who has given evidence of positive steps taken to deal with the Youngest Child’s conduct.[75] The Mother has cast the blame for the Youngest Child’s conduct on the Father’s roster arrangements (wrongly, in the Court’s view, for the reasons expressed above), but unlike the Father, she has given no evidence of how she might, or proposes to, deal with those problems.
Practical difficulty and expense of Children spending time and communicating with parents – section 60CC(3)(e).
[75] Father’s Affidavit, paras 18 and 32-34.
There ought to be no practical difficulty and little expense involved with the Children spending time and communicating with the parents. The parents live in a rural town, about five minutes apart.[76] Both of the Children are of an age where, if they choose, they have the ability and means to communicate independently with their parents.
[76] Father’s Affidavit, para 26.
On the evidence, there were some difficulties with the Children spending time with the parents over the Christmas holidays in 2006, and in particular a dispute concerning the arrangements for Christmas Eve and Christmas Day.[77] The problem which arose on that occasion has been resolved (or ought to be in the future) by the consent orders agreed to by the parties.
[77] Mother’s Affidavit, paras 20-27; Father’s Affidavit, paras 9-12.
Both parents complain that the other has not spent time with the Children when the Children have been with the other parent. The Mother raises issues concerning the Father allegedly leaving the Children alone during her trip to Japan in 2007, and says that for three night and two day shifts the Children were alone at a time when the Father had agreed that he would take holidays.[78] The Father disagrees that he ever told the Mother that he was taking holidays during the period that she proposed to travel to Japan,[79] and says that if he was working he made suitable arrangements for the Children’s care, which he sets out, and which included telephone contact from him, his sister who lives down the street, and a visit from the Father’s 21 year old nephew (the Children’s cousin).[80]
[78] Mother’s Affidavit, paras 30-31.
[79] Father’s Affidavit, para 13.
[80] Father’s Affidavit, paras 14-15.
The Father also says that the Mother does not spend time with the Children when they spend time with her, and in particular that they are left alone each day at her house until 6 pm whilst she works.[81]
[81] Father’s Affidavit, paras 8 and 14.
The Mother ultimately conceded, in examination by her own Counsel, that the Children were “old enough to stay there [at the Father’s house] by themselves” overnight.[82] The Father took the view that the Children were likewise old enough to look after themselves, but nevertheless complained about the fact that the Mother left them on their own. The Court acknowledges however that the Father did have certain controls and contingencies in place for when the Children were alone at his house. The Court considers that there is a need for flexibility in the arrangements for the Children when they stay at their parents and that there is scope for them to look after themselves from time to time. The Court would however be concerned if the Children (and for reasons otherwise discussed above, particularly the Youngest Child) were to be put in a position where, by reason of the Court’s orders there may be scope (and notwithstanding the best efforts of parents and relatives) for the Children to be at their Father’s, but unsupervised and not with their Father, every week. The possibility that that might occur is a good reason to reject the Mother’s proposal of week about time spent.
[82] Transcript at 11.
These are however relatively mature Children. They live in a rural town, with lots of relatives around them, and when staying at the Father’s house the Children’s aunt and her family are just down the road. It has never been the case that parents, be they single parents or coupled parents, are by the side of their children every moment of the day. Parents go out and children go out. It is not the purpose of time spent orders for children to be shackled to their parents’ side, or vice versa. Rather, it is to provide for a parent to have current control and responsibility for the children and their activities. There are many ways in which parents might manage their time spent with their children. There is nothing in the evidence in this case, which is very general in any event, which indicates that either parent’s time spent with the Children has been managed inappropriately, and in particular, that the Father’s roster has given rise to any real difficulty with the Children spending time or communicating with the Father, or for that matter, the Mother.
This is not a factor which, on the evidence before the Court, warrants any change to the existing arrangement whereby the Children spend time with the Father when he is not working and with the Mother when the Father is working.
Capacity to provide for the needs of the Children –section 60CC(3)(f)
Both parents are in secure, full-time employment, and clearly have the capacity to provide for the physical needs of the Children.
The Father pays child support in accordance with arrangements directed by the Child Support Agency, and cannot be criticised for making payments accordingly.[83]
[83] See the Mother’s Affidavit at paras 43-45 where some criticism is implicit.
The Mother is critical of the Father’s failure to assist with various school related financial expenses. However, this is not a problem which will be overcome by altering existing time spent arrangements (or formalising the existing time spent arrangements by way of an order of this Court).
There is nothing in this factor which would warrant the existing time spent arrangements being altered.
Maturity, sex, lifestyle and background of Children and parents – section 60CC(3)(g).
Generally, these matters are discussed elsewhere in these Reasons for Judgment. The Court does however observe that the Oldest Child is almost a legal adult, and is certainly a young man. The evidence indicates that he is about to enter the workforce, seeking engagement as an apprentice. Ultimately, he will probably be in a position to vote with his feet so far as his time spent with his parents is concerned, and to the parties’ credit, they recognise that for so long as the Court’s orders apply to the Oldest Child, they will need to be applied with “some degree of flexibility”.[84]
[84] Notation B to Mother’s Minute of Proposed Orders.
Aboriginal and Torres Strait Islander children – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Children and parental responsibilities – section 60CC(3)(i), (4) and (4A)
The parents’ attitude to the Children and their parental responsibilities is generally discussed elsewhere in these Reasons for Judgment.
Their attitudes perhaps reflect different parenting styles. Thus, it seems that the Father is more open, while the Mother is perhaps stricter and more controlling of the Children, or seeks to be.[85]
[85] Father’s Affidavit at paras 23-24; Mother’s Affidavit at para 40.
The Father can rightly be criticised for failing to provide a roster on time.[86] Similarly, he might be criticised for failing to consult the Mother concerning counselling for the Youngest Child, but that criticism might rebound by reason of the Mother’s seeming intransigence in wanting the Youngest Child to see the school counsellor rather than a person recommended to the Father as the best counsellor available to deal with the Youngest Child’s issues.[87] In this regard, both parties are at fault.
[86] Mother’s Affidavit at paras 32-34.
[87] Father’s Affidavit at paras 34-42.
As otherwise indicated in these Reasons for Judgment there does not seem to be any connection between the Mother’s proposal, the roster and problems, particularly with respect to the Youngest Child’s behaviour and grades, which will be solved by varying the Local Court Orders as to time spent to reflect an arrangement other than the existing arrangement.
Family violence or family violence orders involving the Children or a member of the family – section 60CC(3)(j) and (k).
Not applicable in this case.
Order less likely to lead to further proceedings – section 60CC(3)(l).
Further proceedings in relation to parenting orders for:
a)the Oldest Child will be futile and rendered otiose by his turning 18 in November 2008;
b)the Youngest Child are probably unlikely given that he will soon be turning 15, and any further orders concerning his parenting (particularly as to time spent) are likely to have a limited lifetime and limited efficacy.
Given that there is one limited issue in dispute in these proceedings, the Court considers that a Court order with respect to that issue ought to resolve it once and for all, and not be likely to lead to further proceedings, unless those orders are contravened.
Conclusion and orders
The Court has concluded that:
a)it is appropriate to make orders in terms of the consent orders agreed by the parties, to the extent that they are still applicable and with minor grammatical and typographical changes;
b)there has been sufficient change in material circumstances to warrant considering the application to vary order 3 of the Local Court Orders;
c)the application to vary order 3 of the Local Court Orders will be granted, but in relation to time spent that very general order will be varied only to the extent necessary to reflect and clarify the existing time spent arrangements which it is not in the best interests of the Children to change;
d)it is unnecessary in all the circumstances and given the age of the Children to make formal changeover orders, and the Court expects that the parents will continue with the current reasonable and flexible arrangements in that regard;
e)there will be an order for the Father to provide the Mother with the roster, and any changes to it; and
f)there will be an order for equal shared parental responsibility.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the Reasons for Judgment of Lucev FM
Associate:
Date: 7 February 2008