Ullman and Weaver
[2012] FMCAfam 871
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ULLMAN & WEAVER | [2012] FMCAfam 871 |
| FAMILY LAW – Final parenting arrangements for child aged six – presumption of equal shared parental responsibility – parties currently have poor and mistrustful parenting relationship – best interests – what is reasonable practicable arrangement for child – equal time arrangement – substantial and significant time arrangement – which school should child attend – meaningful parental relationship – section 60CC factors. |
| Family Law Act 1975(Cth), ss.4, 60B, 60CA, 60CC; 61DA; 65DAA, 65DAC, 65DAE |
| MRR v GR [2010] HCA4 Goode & Goode (2006) FLC 93-286 Godfrey v Saunders 208 FLR 287 Eden & Eden-Proust [2011] Fam CAFC 138 AMF v AIF (1999) FLC 92-852 |
| Applicant: | MS ULLMAN |
| Respondent: | MR WEAVER |
| File Number: | ADC 2605 of 2011 |
| Judgment of: | Brown FM |
| Hearing dates: | 23, 24 April 18 & 19 July 2012 |
| Date of Last Submission: | 19 July 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 30 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Basheer |
| Solicitors for the Applicant: | Georgiadis Lawyers |
| Counsel for the Respondent: | In person |
ORDERS
The parties have equal shared parental responsibility for the child of the marriage X born (omitted) 2006 (hereinafter referred to as “the child”).
In the exercise of this equal shared parental responsibility for the child the parties are to consult with each other in respect of all major long term decisions pertaining to the child, which include but are not limited to issues concerning the following:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health and special needs;
(d)The child’s names; and
(e)Any changes to the child’s living arrangements which significantly interferes with the operation of these orders, particularly with the specified arrangements for the child to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the child they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the child in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).
Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The parties be restrained and an injunction issue restraining them from changing the enrolment of the child from the (omitted) Primary School without the written consent of the other.
The child live with the mother in the Adelaide metropolitan area in the State of South Australia.
The child spend time with the father as follows:
(a)during school terms on each Wednesday until commencement of school on Thursday;
(b)during school terms on alternate weekends from after school on Friday until commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday).
(c)For one half of each of the end of term one, term two and term three school holidays in each year, the halves to be agreed between the parties and failing agreement to be the first half in each even ending year and the second half in each odd ending year;
(d)For the first three weeks of the Christmas school holiday period commencing in 2012 and each alternate year thereafter and for the second three weeks of the Christmas school holiday period commencing in 2013 and each alternate year thereafter.
The father’s time with the child during school terms will recommence on the first Wednesday following the resumption of term and on the first weekend following the resumption of term in the event that the child spent the first half of the preceding school holiday with the father and the second weekend following the resumption of school in the event the child spent the second half of the preceding school holiday with the father.
In the event that Father’s Day falls on a weekend the child would not otherwise be in the care of the father pursuant to these orders the father is to spend time with the child on the weekend of Father’s Day in lieu of the preceding weekend.
In the event that Mother’s Day falls on a weekend the child would not otherwise be in the care of the mother pursuant to these orders the father is to spend time with the child on the weekend preceding the Mother’s Day weekend in lieu of the weekend of Mother’s Day.
If the child is in the care of the mother on the father’s birthday the father is to spend time with the child for a period of three hours in the event the day falls on a weekday and six hours in the event it falls on a weekend the hours to be as agreed between the parties but failing agreement to be between 4.00 pm and 7.00 pm and 10.00 am and 4.00 pm respectively.
If the child is in the care of the father on the mother’s birthday the mother is to spend time with the child for a period of three hours in the event the day falls on a weekday and six hours in the event it falls on a weekend the hours to be as agreed between the parties but failing agreement to be between 4.00 pm and 7.00 pm and 10.00 am and 4.00pm respectively.
Notwithstanding anything to the contrary in these orders the child will spend special occasions with each of the parties as follows:
(a)For equal periods of time at Christmas, the times to be agreed between the parties but failing agreement to be as follows:
(i)from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day 2012 and each alternate year thereafter with the father;
(ii)from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day 2012 and each alternate year thereafter with the mother;
(iii)from 12.00 noon on Christmas Day until 12.00 noon on Boxing Day 2013 and each alternate year thereafter with the mother;
(iv)from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day 2013 and each alternate year thereafter with the father;
(b)For equal periods of time at Easter, the times to be as agreed between the parties but failing agreement to be as follows:
(i)from 10.00 am on Good Friday until 5.00 pm on Easter Saturday in 2013 and each alternate year thereafter with the father;
(ii)from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2013 and each alternate year thereafter with the mother;
(iii)from 10.00 am on Good Friday until 5.00 pm on Easter Saturday in 2014 and each alternate year thereafter with the mother;
(iv)from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2014 and each alternate year thereafter with the father;
(c)On the child’s birthday as follows:
(i)if the birthday falls on weekday and the child is in the care of the mother pursuant to these orders the father shall spend time with the child between 4.00 pm and 7.00 pm and if the day is a weekend the time shall be from 10.00 am and 4.00pm;
(ii)if the birthday falls on weekday and the child is in the care of the father pursuant to these orders the mother shall spend time with the child between 4.00 pm and 7.00 pm and if the day is a weekend the time shall be from 10.00 am and 4.00pm.
The father be at liberty to telephone the child and the mother do all things necessary to facilitate such telephone communication between father and child during any period the child is living with her or is otherwise in her care.
The mother be at liberty to telephone the child and the father do all things necessary to facilitate such telephone communication between mother and child during any period the child is otherwise in his care.
The mother and father are each restrained and an injunction issues restraining each of them from denigrating the other in the presence or hearing of the child or permitting any other person to do so.
In order to give effect to these orders the child is to be exchanged between the parties wherever possible at his school or such other location as the parties agree from time to time.
Each party is restrained and an injunction issues restraining each of them from travelling either interstate or overseas with the child unless he or she has first informed the other of the proposed travel and has secured the written consent of that parent to such travel and provided him or her of a comprehensive itinerary in respect of same.
Each party is restrained and an injunction issues restraining each of them from taking the child to consult with a psychologist, psychiatrist or counsellor without the written consent of the other.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ullman & Weaver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2605 of 2011
| MS ULLMAN |
Applicant
And
| MR WEAVER |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Ullman (formerly Mrs Weaver) “the mother” and Mr Weaver “the father” are the parents of X “X” born (omitted) 2006.
These proceedings are concerned with final parenting orders for X’s care. The mother wishes to have sole parental responsibility for X and for the child to live predominantly with her and spend a majority of weekends, during term times, with the father, as well as for blocks during school holidays, provided Mr Weaver is on leave from his work at the time.
Mr Weaver, on the other hand, seeks orders that would see him having sole parental responsibility for X and for the child to live predominantly with him, during the school year and to spend time with his mother on weekends in term time and for one half of each school holiday.
As this brief introduction shows, the respective positions of the parties are polarised in the extreme, with each essentially seeking mirror orders of the orders sought by the other. That is not to say that each of the parties does not acknowledge that the other has much to offer X.
The mother characterises the father as a good parent, who takes proper care of X and loves him very much indeed. However, she would also categorise him as a person who is not functioning well emotionally at the present time and one who lacks insight into the psychological and developmental needs of a child of X’s age.
In particular, Ms Ullman points to the fact that financial necessity dictates that Mr Weaver must remain in the full-time workforce. He is an (occupation omitted) by profession, who describes his current occupation as (occupation omitted). The mother’s previous experience of the father’s work commitments are that they are onerous and time consuming.
If the court makes the orders sought by Mr Weaver, it is acknowledged by him that he would be heavily dependant on before and after school care in his parenting of X, as has been the position up to this stage, pursuant to earlier interim arrangements agreed between the parties in October of 2011.
The mother asserts that the father’s use of before and after school care, for X, has been physically exhausting for the child. Currently, she is undertaking a (omitted) course. As such, she says she is available to care for the child before and after school, which is more emotionally nurturing for him. Ms Ullman also asserts that she has a better grasp, than Mr Weaver, of the nuts and bolts of parenting, particularly in regards to such things as X’s nutritional needs.
The father characterises the mother as a fun and creative parent, who is good at playing with X and making him things. However, he asserts that she fails in many important aspects of parenting, particularly in terms of X’s educational requirements and need to socialise with other children of his own age.
Mr Weaver has many criticisms of Ms Ullman. He has described her as slothful, selfish and dishonest. It is his case that her current portrayal of herself as a caring and concerned parent for X is nothing more than a charade and, if the orders she seeks are made, she will soon revert to type and will leave the care of X to others, including professional carers, essentially so she can suit herself.
From Mr Weaver’s perspective, he sees many positives for X at attendance at before and after school care. He refutes any suggestion that it is a “dumping ground for kids”. To the contrary, he says the particular OHSC[1] which X attends, provides an intellectually stimulating environment for X and one in which he has made many friends. Mr Weaver describes X as a very social child.
[1] OHSC is an acronym for Out of Hours School Care
The underpinning of Mr Weaver’s case and the rationale for him seeking orders, which would see X living with him during the vast majority of school term, is that he asserts that he is the better placed parent to provide for X’s ongoing education and to assist with his socialisation, particularly with other children.
In this latter regard, Mr Weaver portrays Ms Ullman as a somewhat isolated person who does not interact easily with other parents, school authorities or teachers and so is not a person who will engage X in a range of extra-mural activities or encourage his friendships with other children of his own age or indeed, involve herself with other families, with whom X has formed relationships through school or OHSC.
It is also Mr Weaver’s position, given his view that Ms Ullman is an unreliable and somewhat manipulative and disingenuous person, that he is the better placed parent to provide X with a moral compass, in life, as he grows to maturity. In this regard, he does not approve of the person whom Ms Ullman plans to marry later this year, a person by the name of Mr T.
Accordingly this is not a matter without its difficulties. However, notwithstanding their various and stringent criticisms Mr Weaver and Ms Ullman have of one another, this is not a case where either asserts anything other than that the other parent has much to offer X and should be significantly involved with him.
Rather, the case centres on their differing views as to what is important in parenting and on the dynamics of their difficult and mistrustful parenting relationship. Each fears yielding the upper hand in respect of X to the other parent.
One thing the parties do agree upon is that it is untenable for them to share parental responsibility for X, as they do not currently communicate well, although they disagree as to why this is so. The mother says the father is domineering and unhealthily fixated on her relationship with Mr T. The father says the mother is just unwilling to talk to him effectively.
In the context of parental responsibility, a significant dispute has arisen between the parties. X currently attends (omitted) Primary School and has done so for four terms. The school is near Mr Weaver’s home and he is satisfied with it. He does not wish X to leave it, particularly to suit, as he sees it, the mother’s overall convenience.
Ms Ullman would prefer X to attend a private school, preferably (omitted) Primary School in (omitted), which is near her home at (omitted). She believes this school will provide a better standard of education for X. Mr T is prepared to pay the fees involved. One of his children, from an earlier relationship, already attends the school.
The mother argues that, if X is living mainly with her, it makes sense that he should attend a school near to where he will be living in the main, particularly if it is a good school. For obvious reasons, the issue of which school X should attend is highly controversial and emotionally fraught.
Given the dichotomy in the parties’ respective positions in the case, it is not surprising that they come from very different backgrounds. The father was born in New Zealand on (omitted) 1965. He has deposed that he has two university degrees – one in (omitted) and one in the (omitted).
He presented himself as a worldly person, who has lived an expatriate lifestyle for many years, having been employed in (omitted) of the New Zealand, Australia and the United Kingdom (omitted). He hinted at a (omitted) background involving issues of (omitted).
The mother was born in what was then the (omitted) but is now the (omitted) on (omitted) 1986. She grew up in (omitted) with her parents. She worked as a (occupation omitted). The parties met on the internet at some time in 2005. The father was in New Zealand at the time.
They met, face to face, for the first time, in (omitted), in August of 2005, when Mr Weaver travelled to (omitted) for a short holiday. Thereafter, they decided that Ms Ullman would return to New Zealand with Mr Weaver on a limited term visa. The two stayed together at Mr Weaver’s home for approximately three months during which time Ms Ullman became pregnant with X.
The New Zealand authorities would not issue the mother with a visa to remain in New Zealand pending X’s birth. Accordingly she returned to (omitted) and X was born in (omitted) on (omitted) 2006. Mr Weaver returned to (omitted) for his birth, staying with Ms Ullman’s family for a period of around a fortnight before he returned to New Zealand. The parties married in (omitted) on (omitted) 2006. The marriage has apparently been dissolved.[2]
[2] The mother has obtained a divorce from the civil authorities in (omitted) and did so 16 January 2012. This is a matter of some controversy so far as the father is concerned. He has deposed that he has never been provided with any process from the (omitted) authorities. See Exhibit B.
Mr Weaver returned to (omitted) at Christmas time of 2006. The family obtained an apartment in (omitted). The father found it difficult to obtain work in (omitted) due to conditions on his visa. Ms Ullman worked as a (occupation omitted). The parties shared domestic responsibilities. In early 2008, they agreed that there were better opportunities for the family in Australia and they chose to emigrate to Adelaide. By this time Ms Ullman had obtained a spousal visa for New Zealand, which enabled her to enter Australia with Mr Weaver.
Mr Weaver has been employed, in a variety of positions, in Adelaide, since February of 2008. Ms Ullman enrolled in her (omitted) and (omitted) course in February of 2009. She is now in her third and final year. As well as her studies, the mother was also engaged in employment. What was the nature of this employment is highly controversial between the parties.
Mr Weaver asserts that Ms Ullman was working in a (omitted), where she performed (duties omitted). He suggests that the mother met Mr T, whilst she was working at the (omitted). He implies that she was a (occupation omitted) during this period and was also using illicit drugs. He refutes the mother’s suggestion that she was a (occupation omitted) in (omitted), when the parties first met, asserting that rather she worked as an (occupation omitted).
The mother denies that she has ever worked as an (occupation omitted). She denies other allegations raised by Mr Weaver that she infected him with a sexually transmitted disease, rather asserting that it was Mr Weaver who infected her following his own involvement with another person. She says she has only worked in Australia selling (occupation omitted).
These sensitive matters are not being canvassed by me out of any prurient desire to sensationalise the case. Rather, I detail them as a gauge of the degree of polarisation between the parties and the level of mistrust between them. This regrettable state of affairs is relevant to what is likely, on balance, to be the best arrangement for X’s on going care, particularly how parental responsibility for him is to be allocated between the parties.
The circumstances surrounding Ms Ullman becoming involved with Mr T created a fraught emotional topography between the parties, with which all concerned are still struggling to come to terms. Mr Weaver asserts that Ms Ullman met Mr T, whilst she was working at a (omitted) called (omitted). As such, Mr Weaver believes that Mr T is not a person of good character. To the contrary, Mr Weaver implies that Mr T is engaged in shady business practices.
Mr T is a self employed (occupation omitted). He has interests overseas. He seems to be a person of some means. He deposed that his income is somewhere in the vicinity of $7,000.00 per week. As previously indicated, Mr T is willing to pay X’s school fees at (omitted). These fees would be around $2,500.00.
The circumstances surrounding the mother meeting Mr T are controversial. There is however no doubt that the relationship between the two developed quickly. The mother asserts that she met Mr T at a (omitted) in early July of 2011 and a rapport quickly developed between the two. A few days later, Mr T offered to fund the mother’s travel with him to (omitted), so that she could holiday at a property owned by him there, whilst he pursued business interests nearby. He also offered to fly Ms Ullman’s grandmother and mother to (omitted) so that they could join the mother on holiday.
On the 18 July 2011, the mother deposes that she told the father she was leaving the relationship. Although the parties agree that this occasion marks the point at which they finally separated, Mr Weaver asserts that Ms Ullman told him she was going to Melbourne to undertake a training course in Melbourne which had been arranged by her employer.
The exact contents of these discussions between the parties and precisely what was disclosed in them is unclear to me. However Ms Ullman now concedes that on the next day – 19 July – she went to (omitted) with Mr T. She was away for about a fortnight.
During this period, X was in the care of his father, with Ms Ullman’s acquiescence. In answer to questions from me, Ms Ullman concedes that she had no qualms about leaving X in his father’s care for the period. She described Mr Weaver as a “good father [whom she] trusted.”
The period also coincided with the time X was due to commence primary school. Whilst the mother was in (omitted), Mr Weaver enrolled X at (omitted) Primary School. Upon her return from (omitted), the mother spent one night in the former family home with X and Mr Weaver. From 1 August 2011, she has lived with Mr T.
For obvious reasons, the emotional consequences of the parties’ separation continue to reverberate for each of them. The father categorises the mother’s behaviour during the period as selfish and deceptive. He is critical of the mother for putting her own emotional needs before those of X, particularly in terms of missing his first day of school. From the mother’s perspective the trip was essential for her regaining her emotional equilibrium following the end of the parties’ unhappy marriage.
Prior to leaving Australia for (omitted), the mother commenced proceedings in this court on 18 July 2011 seeking orders enabling X’s name to be placed on the Airport Watch List. Given the nature of her application, it was given an urgent return date of 25 July. As she did not appear on the date allocated and no proof was provided of service of the application on Mr Weaver, her application was dismissed.
After the mother returned from (omitted) the parties embarked upon an informal agreement whereby the child spent approximately equal periods of time with each of them. To the parties’ mutual credit, they attended a post separation parenting course together in September 2011. However, given what had occurred between them up to that stage, the equal time arrangement was fraught with all manner of difficulties and characterised by mutual suspicion.
The mother was aggrieved that the father removed X from school in mid September for the purpose of attending an appointment with a psychologist about which she said she had not been informed. She was also concerned that the father was leaving the child with a babysitter, whilst he was at work. In her words, she deemed it inappropriate that X be left with “a stranger”. She was particularly aggrieved because, on her case, Mr Weaver had promised her he would look after X personally.
As a consequence of this, the mother followed the father in her car to the babysitter’s home on 10 October. She demanded the return of X to her from the babysitter. There was an unpleasant altercation to which the police were called. Ms Ullman complains that X was inadequately dressed. Mr Weaver’s perspective of the use of the babysitter was routine. The person in question legitimate and caring and one familiar to both himself and X. He characterises the mother’s behaviour as an unnecessary over-reaction.
This sequence of events was the catalyst to the mother commencing the current proceedings on 12 October 2011. At this stage, she was acting on her own behalf. Initially she sought orders that would have seen X spending from Wednesday to Monday, of alternate weeks, in his father’s care, as well as for half of each school holiday period. Importantly, as matters have developed, she sought an order that X be returned to her, in the event Mr Weaver was unable to personally supervise him.
Mr Weaver responded to this application on 17 October 2011. He sought that X live predominantly with him and spend time with his mother on alternate weekends. He also sought orders requiring the mother to submit to random drug testing. In his supporting affidavit he criticised the mother’s parenting of X as being erratic and her own temperament as being volatile. At this stage, he also raised his allegations regarding the mother’s employment and drug use.
An early referral to a child dispute conference did not assist the parties to reach any agreement regarding either interim or final arrangements for X’s care. Information provided by each of the parties to the family consultant convening the conference, Mr P, caused him to opine that X was suffering from significant emotional and behavioural problems. Both the mother and the father complained to Mr P of serious concerns held in respect of the quality of care provided to X in the other’s home.[3]
[3] See Family Consultant Memorandum to Court of Mr P dated 17 October 2011
On 20 October 2011 the parties agreed, on an interim basis, to have equal shared parental responsibility for the child and for him to live with each of them on a week about basis, moving between their respective homes at the conclusion of school on each Friday. Specific orders were made restraining each of them from having X psychologically examined. Importantly, it was also agreed that if either of the parties was unable to personally care for X, he was to be returned to the other parent.
These orders have remained essentially in place until the present time. The only modification occurring on 24 April 2012 when the orders were modified to permit Ms Ullman to take a three week holiday with X and Mr T to (omitted) and (omitted). Although X returned to Australia without harm, the holiday was not without its controversies so far as both parties are concerned.
The trip to (omitted) and (omitted) occurred mid way through the final hearing process. The hearing was originally scheduled for 23 and 24 April 2012. Regrettably the two days scheduled for the hearing proved to be an inadequate estimate of the time required. The hearing was completed on 18 and 19 July.
As this introduction shows, this is a complex case. Because the primary focus, in children’s cases, is on the best interests of child concerned [section 60CA], it is usual for an independent expert to be commissioned to prepare a report about the individual needs of the child concerned and to examine the parenting relationship of the parties concerned.
In conjunction with the final hearing of this case, it was ordered that such a family report be commissioned. The report was prepared by Ms C, an experienced psychologist, who interviewed the parties and observed them each and Mr T with X in mid January of 2012.
Ms C observed X to have a “close and loving reciprocal relationship” with each of his parents and with Mr T. She also noted that parental communication between the parties was “extremely poor”. One of the main focuses of Ms C’s report was on Mr Weaver’s work commitments and their implications for X’s care whilst he was living with his father.
Ms C reported her opinion that X’s bedtime and wake-up time, whilst he was living with his father, and the involvement of OHSC for X was “an onerous burden for such a young child, especially one who gets tired very easily, and must not continue.” In those circumstances, Ms C was not in favour of X either living predominantly with his father or the equal time regime continuing.
Rather, Ms C recommended that, until Mr Weaver found a job that did not require X to get up before 7.00 am, the child live with the mother and spend time with his father from after school on Friday until 5.00pm the following Sunday on two weekends out of three.
Ms Ullman is content to accept this recommendation. She is also open to X spending half of each school holiday with his father, provided Mr Weaver is not working. Ms Ullman believes that Ms C has put her finger on what is wrong with X’s parenting, whilst he is in his father’s care. Given Ms C’s view regarding the dysfunction in the parties’ relationship, Ms Ullman vigorously maintains her position that she should have sole parental responsibility for X.
On the other hand, Mr Weaver asserts that Ms C has too easily accepted the mother’s accounts of X’s apparent exhaustion and is out of step with the realities of modern parenting. It being the case that in this day and age many parents are in fulltime employment and so necessarily heavily reliant on others to provide care for their children during working hours. In any event, it is also Mr Weaver’s case that Ms C has misinterpreted what she was told about his working hours, which are no where near as onerous as she has stated in her report.
In these circumstances, he maintains his position that he is the better placed parent to provide X’s main place of residence. He also maintains his concerns that the mother is a person who is more interested in pursuing her own interests than devoting herself to X and his best interests. He would say the most obvious example of this arose when Ms Ullman went off to (omitted) with Mr T, a person she had only just met.
These proceedings are directed to resolving this dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. The focus always remains on X’s best interests. The child is not to be awarded, like a prize following a contest, to the parent whom the court believes has behaved the better in the parties’ relationship and afterwards or who is the more deserving of the two. This is not a popularity or morality contest.
The legal principles applicable
The service of X’s best interests is the most important consideration in this case [section 60CA]. This is the paramountcy principle. X’s best interests are the paramount or most important consideration in this case.
The provisions, in the Family Law Act 1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act 1975 [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
In their respective applications, neither party has addressed the issue of equal shared parental responsibility. In their respective submissions to the court, both parties assert that their relationship is too compromised and conflicted for them to consensually make decisions about the three children concerned.
An order which provides for equal shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made when they need to be made without consultation.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[4]
[4] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
The Evidence
Ms Ullman was represented throughout these proceedings by skilled and well prepared counsel. Mr Weaver has acted on his own behalf throughout. As a consequence, he was at somewhat of a disadvantage in the case. Although he is an intelligent and articulate person, Mr Weaver was clearly a fish out of water in the environment of the court room. It was also regrettable that he had to cross examine his former wife in the case, particularly given his many serious criticisms of Ms Ullman’s life choices.
Ms Ullman presented as a serious and intelligent person. Her grasp of oral English was strong and she gave her evidence without the assistance of an interpreter. Both parties appeared to me to be well motivated parents, who knew a great deal about X and his needs. Neither seemed to me to be inherently unreliable or irresponsible so far as the on-going parenting of X was concerned.
From the witness box, I found each party to be a pleasant and honest person. It is also my impression that both the mother and the father share one fundamental thing in common – they both love X to bits and want the best for him now and in the future. In this sense, they are both good parents. However, regrettably, given the gulf in experience and background between them, they have very different views as to what is important in parenting. The many differences between them inform their respective criticisms of one another.
It is, I think, become increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact about myriad issues, which have arisen an extended period, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children that their parents maintain at least the possibility of having a functioning parental relationship with one another following court proceedings, the court should avoid making potentially hurtful findings of fact where ever possible, which may in future be damaging to such parental relationships, unless it is absolutely necessary to do so.
Unfortunately, but for obvious reasons, the parties in adversarial proceedings such as theses tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own.
In addition, the extreme emotion created by such proceedings, which involve the persons the parties to them hold most dear – their child – blur perceptions and recollections of past events. For all these reasons the court must be cautious about making findings of fact.
However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore the court must form some impressions of the parties and witnesses involved so that this adjudication can occur.
Mr Weaver is critical of Ms Ullman for becoming hastily involved with Mr T. However, the fact remains that, at an earlier stage, he and Ms Ullman also became intimately involved with one another within a comparably brief period of having met. In these circumstances, Mr Weaver leaves himself open to the accusation of having double standards, where his behaviour and criticisms of Mr T and Ms Ullman are concerned.
A considerable portion of Mr Weaver’s case comprises criticisms of Ms Ullman’s morality, particularly in terms of how she has derived her income in the past, both in (omitted) and this country. The underpinning of his case is the assumption that Ms Ullman, because of the austerity of her background, is capable of anything to secure her economic security.
Ms Ullman stringently denies the allegations made against her. She also denies having ever used illicit drugs. It is not my role to stand in moral judgement in respect of the past actions of any of the parties in these proceedings other than so far as they have implications for X’s best interests. Apart from Mr Weaver’s assertions about the mother’s prior employment and drug use, there is no positive evidence to support his claims. More importantly, in my view, there is no evidence to indicate that the mother’s prior conduct has ever had any detrimental consequences for X.
Accordingly, in my view, the majority of the father’s criticisms of Ms Ullman are irrelevant to the determination of this matter. The same can be said in respect of his various criticisms of Mr T. These criticisms derive from innuendo and suspicion. In particular, Mr Weaver has attempted to enlist Mr T’s former partner as a witness in these proceedings. The intent being to paint Mr T as a violent and financially unreliable person.
This attempt was unsuccessful as the person in question has neither filed an affidavit nor provided oral evidence in these proceedings. In his affidavit, Mr Weaver deposed as follows: “…everyone knows Mr T’s treatment of his previous partner, proof is a different thing…”[5] For obvious reasons, I cannot give credence to such vague assertions. They are, however, probative of the father’s extreme animosity for Mr T.
[5] See father’s affidavit filed 12 April 2012 at paragraph 97 page 30
Mr Weaver makes no secret of his disapproval of Mr T and acknowledges that he does “nothing to encourage X’s relationship” with him.[6] Mr Weaver has also acknowledged calling Mr T “an ugly bastard all you have is money” and “squaring off” at him.[7] Incidents of this kind add credence to the mother’s assertion that the father has difficulty in quarantining his emotions from X.
[6] Ibid at paragraph 212 page 22
[7] Ibid at paragraph 94 page 30
Mr Weaver is not oblivious to how others are likely to perceive him. In his evidence he said that he knew he “came across as brash and intense”. My impression was of a person who was somewhat prolix and domineering and who did not deal easily with anyone who challenged his view. Mr Weaver maintains his position that he needs to have sole parental responsibility for X. In this context, he accepted my assessment of himself that he would be a “benign dictator” so far as the exercise of parental responsibility for X was concerned vis-à-vis Ms Ullman. In my assessment, Mr Weaver is not a person who easily brooks opposition.
It is also my assessment that Mr Weaver is far less well advanced on the path to acceptance of the end of the relationship between the parties than is Ms Ullman. In my view, this state of affairs has consequences for his overall level of objectivity in respect of both his complaints about the mother and what is the best outcome for X.
On the other hand, Ms Ullman and Mr T, at least in court and in their filed material, seemed to hold far less animus for Mr Weaver than he for them. From his presentation in court, I have no reason to disbelieve Mr T’s statement that he has “mostly not gotten involved in the dispute between Ms Ullman and the Father regarding X.” [8] My impression of Mr T is that he wants a cordial and non-confrontational relationship with Mr Weaver.
[8] See Mr T’s affidavit filed 22 March 2012 at paragraph 94
Mr Weaver asserts that the mother is emotionally unreliable so far as X is concerned, as she missed his first day at school and is not involved in the life of his school. However, in my view, the greatest threat to X’s emotional well being comes from the conflicted relationship between his parents, which in large part is centred on Mr T. It is my finding that Mr Weaver is more instrumental in driving that conflict than the mother.
In all these circumstances, it is my finding that the mother is, on balance, likely to be the more reliable and objective witness of the two parents concerned. Her case was more coherently prepared and was less strident in its criticisms of Mr Weaver than he was of her.
In these reasons for judgement findings of fact are made on the balance of probabilities following my observations of the witnesses concerned. In what follows statements of fact constitute finding of fact.
The mother’s evidence
I accept that the mother has been a consistent and positive influence in X’s life since the date of his birth. It is also the position that X’s maternal grandmother has also been significantly been involved in his life, both in (omitted) and Australia. She visited Australia in early 2011, spending about a month in Adelaide. X has visited her, on two occasions, in Europe, since then.
It is Ms Ullman’s case that, since the family moved to Australia, she has provided more of X’s care. On balance, this seems more likely than not, given Mr Weaver was the family’s main breadwinner and at times worked long hours, including nights.
I accept Ms Ullman’s evidence that she was significantly involved in X’s kindergarten at (omitted), taking him to and from kindergarten. I also accept that she volunteered at the kindergarten, assisting the children to make art works and to play with clay. This is at odds with the father’s portrayal of the mother as a socially isolated person, who does not join in school activities.
Ms Ullman’s evidence is that X enjoys swimming. I accept that she has taken X to the aquatic centre for regular swimming lessons. She concedes that Mr Weaver has also taken X to swimming, but less frequently than her. I accept this evidence. Again, this does not support a characterisation of the mother as a self absorbed person, who is disinterested in X’s welfare.
a) The mother’s current circumstances
Ms Ullman has no plans to return to the paid workforce for the foreseeable future. She hopes to complete her (omitted) course at the end of this year. Her course occupies approximately twenty hours per week during the academic term.
She and X, when he is in her care, live in Mr T’s residence at (omitted). She and X are financially supported by Mr T, who pays for groceries and other bills. As previously indicated, Mr T has also paid for the mother and X to travel overseas.
Besides his house at (omitted), Mr T owns a farm at (omitted), which he, the mother and X visit regularly. It is Ms Ullman’s evidence, which I have no reason to disbelieve, that X enjoys visiting the farm.
As previously indicated, Mr T is comfortably off. He and the mother plan to marry later this year. I have no reason to doubt the sincerity of the feelings which Mr T and Ms Ullman profess to have for one another. Mr T is an Australian citizen and was born in this country. Ms Ullman is in the process of applying for Australian citizenship.
Mr T is the father of two other children. They are A born (omitted) 1999 and B born (omitted) 2010. The children have different mothers. A lives predominantly with Mr T, whilst B visits regularly. Both A and X have their own bedrooms. For reasons already provided, in the absence of actual evidence from her, I reject the assertion that B’s mother regards Mr T as a violent and unstable person.
It is Ms Ullman’s position that, given she does not currently need to work, she is the better placed parent to provide the majority of care for X. In these circumstances, she asserts that it makes sense for X to attend a school near to where he will mainly live, particularly if it is a better school than the one which he is currently attending.
(omitted) Primary School, which X currently attends, is about 10.5 kilometres from where the mother and Mr T live. It is their position that this is an onerous drive for X and that (omitted) Primary School, which is close to (omitted), is a much better school than (omitted) Primary School. A attends this school and, as previously indicated, Mr T is prepared to pay X’s fees at the school.
I have not been provided with any specific evidence regarding the attributes of (omitted) Primary School or its standard of scholastic excellence. The only evidence I have about the school comes from Mr T. He asserts that he is pleased with how A is educated there and he believes that X will similarly benefit. The underlying assumption of Mr T’s position is that a private school is invariably better than a publicly funded one. This has been his experience in employing persons for his business.
Ms Ullman has deposed that she does not think that (omitted) Primary School is a bad school but she thinks there are better ones available in Adelaide, particularly closer to her home. She is very much in favour of X attending (omitted) Primary School, as soon as possible. For obvious reasons, this is a highly emotive and controversial issue between the parties.
At present, Ms Ullman is able to deliver and collect X directly to and from school without needing to utilise OHSC. It is her case that this is a better arrangement for X than that which can be provided by Mr Weaver. She categorises X as a child who tires easily and who still requires an afternoon nap, following school. It is her case that Mr Weaver’s dependence on OHSC is simply too exhausting for X.
It is Ms Ullman’s evidence that X regularly falls asleep in her car going home from school. As such, she is concerned that X must be even more tired during the weeks he is in his father’s care because he must attend OHSC in these weeks. For his part, Mr Weaver denies that X regularly falls asleep in his car, whilst going home.
b) The mother’s criticism of the father
The mother’s fundamental criticisms of Mr Weaver are that his daily regime of caring for X is too onerous for the child and Mr Weaver himself is not adept at providing for X’s needs. She asserts that when X is living with his father he needs to get up very early to attend OHSC. A pattern which is repeated at the end of the school day, with X attending out of hours school care until he is collected by his father in the late afternoon.
Ms Ullman goes as far as describing X as being “exhausted and sleep deprived” when he is living with his father. She says this causes X to become moody, irritable and lacking in concentration. Ms Ullman asserts that X’s teachers have informed her of their concerns about X’s performance at school. It is also her case that her routine for X is more stable and predictable than that which is provided by the father.
It is her understanding that Mr Weaver does not always attend as scheduled to collect X from OHSC. Essentially, it is Ms Ullman’s position that the differences in routine in the two households concerned are inimical to either a shared care regime or a substantial and significant time regime.
The mother is also critical of Mr Weaver for failing to discuss important matters to do with X with her. One example concerns Mr Weaver unilaterally enrolling X in a (nationality omitted) school, which takes place on Saturday mornings. Ms Ullman suspects that the father enrolled X in the school so that he could work on Saturdays.
In my view, the father was genuinely motivated in enrolling in X in (nationality omitted) school, given the child’s background. However, I have no doubt that he failed to discuss the issue with Ms Ullman. The issue is emblematic of the parties’ parenting relationship. They do not discuss matters with one another and each sees the other having a hidden agenda in respect of all issues to do with X.
Ms Ullman is also critical of some practical aspects of Mr Weaver’s parenting. For example, she criticises the contents of X’s lunch box, when he is in his father’s care. She asserts that Mr Weaver provides him with whole fruits and jam sandwiches. Ms Ullman says X cannot eat the former and the latter is not nutritious.
It is the mother’s case that she provides X with nutritious sandwiches and cuts up pieces of fruit, which the child prefers. She categorises X as a “fussy eater,” whilst Mr Weaver regards the child as more robust in his tastes. He sees nothing wrong with plain sandwiches and asserts that X is more than capable of eating a whole apple by himself.
In my view, these are not issues which need to be positively determined one way or the other. Rather, they are issues which turn on the different personalities of the parties themselves and what each considers important in respect of parenting. Ms Ullman is likely to be a more solicitous parent, whilst Mr Weaver is likely to be less refined or polished in his parenting.
For obvious reasons, X is not likely to come to any lasting harm if he has a jam sandwich for lunch or fails to eat a banana, which he allows to spoil in his school bag. After all it is a perennial complaint of parents that their children do not eat the healthy food provided for them for school lunches. Some may view these complaints about lunches as being petty criticisms. However, to my mind what they do indicate is an inability on the part of the parents concerned to adopt a common approach or routine in respect of X’s day to day school needs.
The mother has other criticisms of this kind. She buys X good leather sandals; the father buys him plastic ones. Clothes are provided at handover, but not returned. X is not bathed frequently enough. He is fed too many chips and ice-creams. Mr Weaver smokes too much in X’s presence. Again matters of this type are indicative of a lack of trust and empathy in the parties’ parenting relationship and almost certainly an absence of a common ethos about parenting.
However, the mother’s main criticism of the father is that he constantly undermines X’s relationship with her and Mr T, which is emotionally distressing for X and potentially psychologically damaging to him, given his age and level of development. In my estimation there is significant substance to this criticism. As previously indicated, it is my view that Mr Weaver has not come to terms emotionally with the end of the relationship between the parties and remains extremely antagonistic towards Mr T.
I accept that Mr Weaver has made negative comments to X specifically about Mr T and generally about people of (omitted) origin. In addition, he has used X as a confidant to discuss his antipathy for the mother’s relationship with Mr T and his hope it will come to an unhappy end.
The mother’s professed position in court is that she “would like to communicate with Mr Weaver… [but]…he does not listen…he is not interested…he does not want to participate…he is angry with me.” From my observations of each of the parties, during the hearing of the matter, this does not seem to me to be an unlikely summary of the current nature of the parties’ parenting relationship.
In this respect, I accept the mother’s evidence regarding a recent difficulty which arose concerning X’s attendance at OHSC on a recent pupil free day at school. I accept that Mr Weaver was not candid with Ms Ullman about what was happening on the day in question. Given what Ms Ullman asserts are serious and intractable communication problems between the parties, she contends that care arrangements for X based on the sharing of parental responsibility will be very difficult to implement successfully.
The father’s evidence
The father’s trial affidavit is a lengthy document. His view of Ms Ullman is essentially negative. He describes Ms Ullman as “excitable,” whilst he is able to keep his head. He describes himself as being “completely frustrated by Ms Ullman’s constant barrage of lies and accusations.”[9] Essentially, during his evidence, Mr Weaver portrayed himself as a logical and reasonable person, whilst his former wife was the complete opposite.
[9] See father’s affidavit filed 12 April 2012 at paragraph 233 page 26
Mr Weaver has raised some concerns about Ms Ullman’s parenting skills. He categorises her as an erratic and neglectful parent. Examples of her neglect including: leaving X in the bath with the taps on; leaving her hair tongs plugged in within X’s reach from the bath; placing a fan heater on the wet bathroom floor; leaving broken dishes on the floor unattended; and driving in an aggressive manner.
I acknowledge that each of this type of conduct has the potential to be life threatening for X. However, fortunately, there is no evidence to indicate that X has ever come to serious harm, whilst in his mother’s care. More importantly perhaps, Mr Weaver does not criticise, so far as I can tell, the love and care, which X receives whilst with his mother. It is not said by Mr Weaver that X is not properly fed and tended, whilst he is living with Ms Ullman.
Counsel for Ms Ullman closely cross examined Mr Weaver regarding his work history between the date of the family’s arrival in Adelaide and the date of their separation. He conceded that he had been in continuous employment during this period and at times had worked extensive hours, including at night. His work history, during this period, included an episode of self-employment, during which he had been involved in (occupation omitted), including the (duties omitted).
I am not critical of Mr Weaver for being involved in the paid workforce. After all, due to Ms Ullman situation, he was by necessity the family’s sole breadwinner. It also seems to be the case that the family was struggling financially after its relocation from (omitted). However, this situation leads me to the unavoidable conclusion that Mr Weaver was confident to leave X in the mother’s care, whilst he went to work. This suggests that he was generally satisfied with the care which she provided to X. To my mind, this state of affairs significantly undercuts his more recent criticisms of Ms Ullman’s parenting.
a) The father’s present circumstances
Since September of 2011 Mr Weaver has been working for a company called (omitted), at premises which are located not far from (omitted), where Ms Ullman and Mr T currently live. In my view, Mr Weaver was somewhat cagey about his employment with this firm. It was only in his oral evidence that details of his employment were provided. He continues to live in (omitted), which is close to (omitted) Primary School.
Mr Weaver deposes that his employers are sympathetic to his situation as a sole parent and provide him with flexible hours. In his words, his hours of work are 7.30 am to 3.30 pm “on paper”. The implication being that he can work around these hours, in order to facilitate X’s needs. Mr Weaver describes himself as a “contract” employee. As such, he concedes that the dictates of his work require him at times to “pop in” to his office on weekends, particularly if he is awaiting an email communication from (omitted).
Mr Weaver is entitled to six weeks annual leave per annum. In these circumstances, he believes it is appropriate for conventional orders to be made in respect of X spending half of each school holiday period with each of his parents. Mr Weaver has deposed that he will make himself available to spend time with X during these holidays but will also arrange appropriate activities for the child. As such, Mr Weaver does not rule out the prospect of X attending some sessions of vacation care.
He refutes any suggestion that he is a “workaholic”. It is his case that he works orthodox hours which are commensurate with his level of responsibility in the firm. He disputes that it is inappropriate to take X into his workplace, on weekends, for short periods of time. To the contrary, it is his case that X enjoys seeing the (omitted) there and other (omitted) equipment, such as (omitted) and (omitted), related to the business.
On the weekdays on which X is in his care, Mr Weaver has deposed that it is necessary for him to leave home at around 6.55 am to drop X off at OHSC at 7.00 am and be at his employment around 7.30 am. Formal school hours commence at 8.45 am. On his case, X gets up “by himself” between 6.10 am and 6.30 am and dresses himself. At home, he breakfasts on cornflakes and weak tea. It is Mr Weaver’s position that it is an error on Ms C’s part to record in her report that X has to get up at 5.30 am on school mornings, whilst he is in his father’s care.
X finishes school at 3.15 pm in the afternoon. OHSC is available at (omitted) Primary School from 7.00 am until 8.45 am in the morning and from 3.15 pm until 6.15 pm in the afternoon. I have not been provided with any evidence as to how many children utilise the service and with what degree of frequency.
The records of X’s attendance at OHSC for 2012 are far from complete and difficult to decipher.[10] These records show a range of pick up times for X, in Mr Weaver’s weeks, ranging from 3.15 pm to as late as 5.30 pm. There are also pick up times noted around 4.00 pm. It would seem likely to me, given Mr Weaver’s work schedule that the most usual collection time would be around 4.00 pm. Accordingly, X’s school day, whilst he has been in Mr Weaver’s care is likely to be usually about nine hours in duration.
[10] See Exhibits A and D.
Mr Weaver sees many positives for X arising from his attending OHSC. These include him socialising with other children and engaging in activities with them. By way of example, on a recent pupil free day, the children from X's OHSC engaged in a Michael Jackson themed dance party, which Mr Weaver attended with other parents and which X much enjoyed. It is also Mr Weaver’s case that there have been father and sons events arranged through OHSC which he has attended with X and other fathers. These events have included cricket matches and communal meals at McDonalds.
As a result of matters such as these, Mr Weaver refutes any suggestion that OHSC is a “dumping ground” for children. Rather he sees it as being well run and enjoyable for the children who attend it. He describes X as being “a very bright and very social kid” who particularly relishes OHSC. He would regard Ms C as being somewhat out of touch with the times, in respect of her attitude to OHSC, which many parents utilise in this day and age because of their work commitments. He would categories his current working hours as being hardly exceptional.
Mr Weaver is pleased with the education X has received to date at (omitted) Primary School and place significant emphasis on the fact that he has been at the school for four terms now and has made friends with other children there. As such, he sees it as being potentially unsettling for X to change school at this juncture. He asserts that the mother is being selfish by wanting to change his school at this stage, as she is motivated by her own convenience rather than X’s best interests.
The father presents as a somewhat avuncular person, who is friendly not only to his own son, but also to the other children at X’s school and their parents. It is his case that he is a social person who readily joins in activities at (omitted) Primary School and this is useful for X’s socialisation and personal development. It is also his case that he has a wider circle of friends than the mother and this is also helpful to X.
The father presented in the witness box as an outgoing and candid person. My assessment of him is that he is a joiner and, as such, is likely to relate well to both X and his friends. I accept that he plays cricket with X and his friends; attends parent functions at his school; and has taken him on a 4 wheel drive jamboree, which regularly takes place at Easter. These are all positive activities for X.
b) The father’s criticism of the mother
The father’s criticisms of the mother centre on his characterisation of her as a somewhat erratic and unreliable person, who although loving and creative, is not likely to put in the hard work of parenting X. It is also his case that the mother is a deceitful person, who if she is endowed with sole parental responsibility for X, will utilise this power against him to undermine his central role in X’s life and development. This is in contrast to his own assessment of himself as likely to be a benevolent dictator if cast in this role. In his view, Ms Ullman would just be a dictator.
The mother’s decision to travel to (omitted) with Mr T was undoubtedly a sudden one. I accept that it had implications for X, as it meant that his mother was not present for his first day of school. The decision also considerably undercuts the mother’s criticisms of the father as an incompetent parent given that she was willing to entrust X to his father’s care, whilst she took a spontaneous holiday with a person who was a relative stranger to her.
I can understand, in the circumstances, why the mother was not completely frank with Mr Weaver about her plans to travel to (omitted) in July 2011. I am more concerned about her decision to take X on a holiday to Queensland with Mr T in January 2012. I accept Mr Weaver’s evidence that Ms Ullman told him she was taking X to (omitted) for a holiday. This deception does her no credit. It is poor parenting for one parent to deceive another parent about such plans and has the potential to place the child who is the subject of such deception at the fulcrum of any subsequent dispute between the parents concerned.
In terms of X’s enrolment in (nationality omitted) School on Saturday mornings, I accept that Mr Weaver was well motivated and thought that the activity would be helpful for X to develop a sense of his (nationality omitted) heritage. However, the fact remains that this was a unilateral decision made on his part, without any consultation with the mother. Accordingly, Mr Weaver is not without his failings in respect of being sensitive to the mother’s feelings about X and his activities.
Apart from these two incidents regarding her travel, I saw little evidence of the mother of the mother as an erratic and careless parent in the witness box. To the contrary her presentation was as a parent who was perhaps unduly solicitous or indulgent where X was concerned. Examples of this were her preference for X to have cut-up strawberries and other fruit for lunch and the fact that she allowed X twenty minutes to get dressed, at his own pace, in the morning. On the other hand, Mr Weaver, although an affectionate parent, seemed to me to be more of a no nonsense one. In his household X takes a considerably shorter time to get dressed.
Mr Weaver refutes any suggestion that the diet which he provides X is any inadequate. He is critical of Ms Ullman for providing X with high sugar energy bars for lunch. It is his case that X regards cut-up fruit as baby food. It is also his case that X has a say in what he gets for lunch at school and what is provided for him is appropriate.
Mr Weaver prides himself on the nutritious food he provides X for his evening meal. He concedes the child enjoys chicken nuggets and fish and chips, but asserts that these take away meals are infrequent and take place as a treat. On the basis of the evidence available to me and my assessment of Mr Weaver in the witness box, I do not consider that he is, on balance, likely to neglect X’s nutritional needs.
Mr Weaver reports that X has displayed unfortunate patterns of behaviour following his weeks in his mother’s and Mr T’s care. The implication of these criticisms being that they have exposed X to the physical aspects of their relationship and do not appropriately monitor his behaviour through appropriate discipline. For her part, Ms Ullman has similar criticisms of Mr Weaver in respect of how the child presents in her household after he has spent a week with his father.
It is difficult for me to accurately ascribe reasons for what both parties regard as concerning incidents of behaviour displayed by X. It is however clear to me that there is a considerable level of tension and mistrust between the two households concerned, between which X must regularly transition. This state of affairs is likely to be challenging for X’s sense of loyalty to each of his parents and unsettling to his emotional equilibrium.
Mr T’s evidence
Mr T is forty-two years of age. As previously indicated he owns a business engaged in (omitted) and is comfortably off financially. There is no probative evidence available to me to indicate that his business is anything other than legitimate. My impression of him from the witness box was of a well intentioned person who had no axe to grind so far as Mr Weaver was concerned but who genuinely wanted to have a constructive relationship with him.
That is not my impression so far as Mr Weaver’s attitude for Mr T is concerned. Mr Weaver has unsuccessfully attempted to solicit Mr T’s past partner to give evidence in these proceedings, as to Mr T’s allegedly violent and anti-social past. Such conduct is at the least meddlesome, at the worst vindictive. It does little to reduce the tensions between the parties. As such, it is my finding that Mr Weaver remains emotionally enmeshed in the unfortunate situation arising when he and Ms Ullman separated, an incident which obviously also significantly involved Mr T.
Mr Weaver seems to regard Mr T as an enemy, who is to be thwarted. I am concerned that the evidence available to me indicates that he conveys this view to X. It seems more probable than not that Mr Weaver has made derogatory comments about (nationality omitted) people in X’s presence.
To Mr Weaver’s credit, following the completion of the first part of the trial in April, he agreed to X travelling to (omitted) and (omitted) with his mother and Mr T. It being his position that he would not stand in the way of X spending time with his (nationality omitted) relatives. This travel was subject to a number of stipulations fixed by Mr Weaver, which included the provision of emergency exit travel insurance and a requirement that Mr T abandon western clothing whilst in (omitted), presumably to avoid the prospect of becoming the subject of criminal behaviour.
Although disputes have subsequently arisen about the extent of the travel insurance provided and the exact extent of the time actually spent in (omitted) as opposed to (omitted), no harm befell X in (omitted). It was also ordered that X remain in contact with his father, whilst he was away, by means of regular skpe calls. Both parties agree that these were successfully implemented.
However, unfortunately, there was an unpleasant incident between the parties and Mr T when Mr Weaver came to collect X following his return from overseas. It is said that the child asked his father as to why the various persons – specifically Mr T and his father – in his (X’s) life could not be friends. The mother asserts that this question was innocently asked by X and she refutes any suggestion that it was primed by her.
The process of answering the question does not seem to have been well handled by Mr Weaver. His position is that he is unflinching in his honesty to X and, as such, he made it clear to the child that it could never be the case that he (Mr Weaver) could be friendly to Mr T. This has been his position throughout these proceedings.
Thereafter both parties assert that the other instigated a verbal altercation, which distressed X. Mr Weaver asserts that Ms Ullman made a rude hand gesture in his direction. Ms Ullman asserts the same about him. The incident, perhaps of itself trivial, is in my view indicative of the gulf between the parties, which arises because of the relationship between Ms Ullman and Mr T. It is also indicative of the potential for X to be upset by this state of affairs.
As is to be expected, Mr T speaks positively of Ms Ullman’s capabilities as a parent describing her as a “very maternal and caring parent [and] an excellent mother.”[11] He also deposes that Ms Ullman has a close relationship with his own children. He speaks highly of her attributes as a cook. I have no reason to disbelieve this evidence.
[11] See Mr T’s affidavit filed 22 March 2012 at paragraph 44
It is also his case that the mother is generally respectful of the father and does not make negative comments about him to X. It is his position that this attitude is not reciprocated by Mr Weaver. Again, for reasons already provided, I consider that this evidence is more likely than not to be true.
Mr T has deposed that he enjoys a close relationship with X and the two enjoy each other’s company. This state of affairs was confirmed by Ms C’s observation of the two together. However Mr T also stated that he had no desire to supplant Mr Weaver’s role as X’s father. X refers to him as (omitted) which is a (omitted) nickname for Mr T. Again Ms C indicated in her report that she was confident that X was well aware of the different roles in his life filled by Mr Weaver and Mr T.[12]
[12] See Family Report dated 27 February 2012 at page 10 paragraph 1
The family report and the evidence of Ms C
Ms C has been a clinical psychologist for around twenty years. Prior to that time she was a primary school teacher for around ten years. Given this background, a major emphasis in her practice is on young children. She has written many family reports for this court and the Family Court.
In interview with Ms C, the mother indicated that X went to sleep, in her house, at around 8.00 pm and woke each morning at around 7.30am. She described him as being a good sleeper. On the other hand, Ms C reports that the father told her he had X in bed at 8.30 pm and got him up at 5.30 am. Mr Weaver disputes this latter time and asserts Ms C has misreported him.
Ms C goes on to report that Mr Weaver told her he had X at school at 7.00 am and picked him up between 3.30 pm and 3.45 pm each day. He too reported X to be a very good sleeper. I do not think Mr Weaver cavils at these details attributed to him. However he remains concerned that Ms C’s mistaken view regarding X’s wake-up time has strongly influenced her report and caused her to be prejudicial in respect of his proposed care arrangements for X.
Both parties, in interview with Ms C, expressed a negative view of the other’s parental capacity. However, in respect of Mr Weaver, Ms C reported that it took her some time to focus his attention on X rather than Ms Ullman in the family assessment process.
Her overall assessment of the parties was that the mother was “child focussed [and was] concerned about X and his behaviour whilst the father presented in a different way; was difficult to keep on task; and kept going off on a tangent.” Again, although it might be easily said that Ms C formed a negative impression of Mr Weaver, her impression was not greatly different to the one I formed of Mr Weaver myself. She viewed him as sounding somewhat “paranoid” in his descriptions of the mother and her alleged failings.
However Ms C was of the view that X had a good relationship with his father. The two were observed by Ms C to chat comfortably and amicably together and enjoy an intimate proximity. Ms C was however concerned that Mr Weaver did little to restrain X from persistently jumping on her couch, which behaviour led to her intervention. She was critical that Mr Weaver was not more directive and consistent in disciplining X for what she clearly regarded as unacceptable behaviour on the part of the child.
On the other hand, Ms C was impressed at the ability of Ms Ullman and Mr T to focus X’s attention. In addition, X was observed to interact affectionately with his mother. It does appear to be the case that Ms C was more impressed with Ms Ullman’s capacity to manage X than she was with Mr Weaver. However X was observed to have a “close and loving reciprocal relationship between him and his parents and between him and Mr T”.[13]
[13] Ibid at page 11 paragraph 1
Ms C noted parental communication between the parties was “extremely poor”. Ms C relied on the incidents of Ms Ullman taking X on holiday to Queensland without informing Mr Weaver and of Mr Weaver taking X to a psychologist without informing Ms Ullman to justify this observation. Needless to say, it is an observation both I and the parties themselves endorse.
Both parties report that X has exhibited some signs of emotional distress resulting from his exposure to the equal time regime. In addition, both parties report poor behaviour on X’s part, which each attributes to the parenting style of the other.
It is the mother’s position that a transition of the child into her predominant care will ease some of these problems. A view which seems to have some support from Ms C. I do not dismiss this as a possible benefit accruing to X of their being the change to his current circumstances proposed by the mother.
e) The practical difficulties and the expense of the child spending time and communicating with each of his parents
This is not a case which throws up significant practical considerations to do with X spending time with each of his parents. The parties both live in suburban Adelaide, approximately 10kms apart. They both have access to motor vehicles.
The best location to exchange X is likely to be at his school. The school environment provides a useful point of demarcation for X to move between his parents respective households. It is neutral ground and the parties do not necessarily have to come into direct contact with one another.
Mr Weaver prefers that X should continue to attend (omitted) Primary School, which is very close to his home. He has constructed his day to day living and work arrangements around X attending this school. Accordingly, he strongly resists X’s school being changed.
One of the factors supporting Ms Ullman being able to change X’s school to (omitted) Primary School is its proximity to her and Mr T’s home in (omitted). If she is successful in her application for X to live predominantly with her, it is her case that it makes sense for the child to attend school at a place close to his home, particularly when the child concerned is young.
In this regard, no doubt, Ms Ullman adopts what was said by the initial judicial decision maker in Eden & Eden-Proust[18]
“… it would be fair to say that most reasonably minded people in the community would hold to the view that, generally, absent any agreement to the contrary, a child should attend a school close to his or her primary place of residence. Obviously, travelling time to and from school is dead time for the child and takes away from him or her the opportunity to use such time for more productive/enjoyable purposes, such as school work or sporting activity.”
[18] See Eden & Eden-Proust [2011] FamCAFC 138 at page 2
I will return the issue of which school X should attend in due course. However, in terms of X retaining the capacity to spend time regularly with each of his parents, the choice of school is not determinative. Each of the parties will be able to get to either of the schools concerned.
However, the issue is emblematic of the deep seated mistrust between the parties. Sadly, whatever is the outcome of the school issue, one of the parties will feel hard done by.
f) The capacity of the parties to provide for the child’s emotional and educational needs
As I have pointed out throughout these reasons for judgement, it is my assessment that the parties bring different attributes and strengths to the parenting of X. Mr Weaver asserts that he is better placed to provide for X’s educational needs because of his superior level of education and because of his abiding interest in every aspect of X’s schooling.
I was impressed with Mr Weaver’s account of his involvement in the school community at (omitted) Primary School. I was also impressed with his enrolment of X at (nationality omitted) School with the intent of fostering X's (nationality omitted) sense of identity.
I do not think that Ms Ullman and Mr T are disinterested in X’s education. To the contrary, their promotion of (omitted) Primary School as a superior school obviously indicates otherwise. In addition, in the past, Ms Ullman has involved herself in some of the artistic aspects of X’s education and has attended his kindergarten to take part in such activities with X and his compadres.
My impression of Ms Ullman is of a tender and loving parent. Ms C’s impression was that she was in tune with X’s emotional needs. I accept that this is so.
Mr Weaver also clearly loves X. I have no doubt that he provides much appropriate affection to the child. However, it is my assessment that his inability to hide his antipathy for Ms Ullman and Mr T from X causes psychological discomfort to the child. In these circumstances, it is my finding that the mother is more attuned with X’s psychological needs than the father.
g) The child’s maturity, sex, lifestyle and background
X has an expatriate background. Both parties are committed to fostering X’s sense of identity in this regard. The matters which arise for consideration under this criterion do not appear to be significant in this case.
h) Aboriginality
This is not a relevant consideration.
i) The attitude that each party has demonstrated to the responsibilities of being a parent
In my estimation, both parents aspire to fully discharging each and every responsibility incumbent in being a good parent. In this sense, each is to be regarded as a good parent. I do not think that either party has adopted their respective position in this case for any ulterior motive.
The major issue, which arises under this heading, is the unacceptably high level of conflict between the parties and how this is likely to cloud their decision making process in regards to how X’s interests are to be best served.
Each of the parties blames the others for their present poor relationship. In my view, it would be unduly simplistic for me to accept that one party was the creator of this unsatisfactory state of affairs and the other was a victim of it. Rather I believe that both Mr Weaver and Ms Ullman must bear a portion of the responsibility for the creation of the difficult relationship between them.
In this regard, the mother’s decision to separate from the father and to travel to (omitted) with Mr T, leaving X behind in Mr Weaver’s sole care was a precipitate one. Mr Weaver has been struggling with the emotional consequences of this state of affairs for some time. It does not seem to be the case that he has fully adjusted to this state of affairs.
The parties bring different personalities and background to the parenting of X. Inevitably, they are likely to have different priorities and agendas in regards to his care. These circumstances must lead to differences of opinion between them, particularly since the relationship between them has ended, an occurrence, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
All relationships have difficulties from time to time. It would be unrealistic for me to accept that, when parents separate after a reasonably lengthy relationship, that they would not experience some trials and tribulations, as they adjust to living separate lives. In such circumstances, it seems inevitable that disagreements will arise between them and it would be unnecessarily utopian to think those disagreements could always be resolved amicably.
Both parties are intelligent people. They are each devoted to X, perhaps with different priorities in respect of his care. Intellectually, both is aware of the potential for the conflict between them to adversely affect X. In these circumstances, with the passage of time, I am hopeful that the parties parenting relationship with one another can become easier.
However, up to this stage, there have been some obvious deficits in the parties parenting relationship. Mr Weaver has sought to have X undergo a course of psychological counselling, without either informing Ms Ullman or seeking her approval. Such a course can only lead to the intensification of mistrust between the parties and cannot be regarded as good parenting.
For reasons already provided, I am satisfied that at the present time it is Ms Ullman who is significantly better adjusted to the end of the parties relationship with one another. This is an unavoidable conclusion given that she has been able to embark upon a relationship with Mr T, which gives every indication of being successful. In these circumstances, it is my assessment that it is Mr Weaver who is more responsible for driving the conflict between the parties at the present time.
j) Family violence
k) Any family violence order
These are not relevant considerations in this matter.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
In these circumstances, it seems to me desirable that the court should bring about, in any orders made, as stable a situation as possible, for the child, which will obviate the need for any further litigation.
The parties’ parenting relationship with one another is poor. This is not a good harbinger for the avoidance of further litigation. Nor is the possibility of ill will remaining between the parties, as a consequence of the court’s decision regarding which school X should attend for the remainder of his primary school education, no matter what that decision is.
In the circumstances of this case, it is difficult to see any particular outcome which, of itself, is one which is particularly shaped so as to reduce the prospect of further litigation between the parties. Both parties seem to be strong minded individuals, who are not adverse to putting their point across.
The presumption of equal shared parental responsibility
Section 61DA(1) creates a positive presumption that it is in the best interests of any child for his or her parents to have equal shared parental responsibility for the child. In the case of X, this presumption is not rebutted because of any reasonable belief I have that either party would abuse X or expose him to family violence.
The only ground available for the presumption to be rebutted is if I am satisfied that the evidence available to me indicates that it would not be in X’s best interests for Mr Weaver and Ms Ullman to have equal shared parental responsibility for X.
No matter the degree of conflict between the parties, they have one thing in common, which unites them as a family, albeit a separated family. Both the father and the mother aspire to being fully involved in all aspects of X’s life, on both a day to day and long term basis.
In addition, as I have found them to be, both parties have much to offer X. Up to this stage, both parties have been significantly involved in providing X’s day to day care. In difficult circumstances, they agreed to an equal time regime for his care.
In all these circumstances, there seems an extreme element of artificiality to confer sole parental responsibility on one or other of the parties merely because of the current acrimonious relationship between them, which has impeded their capacity to communicate effectively with one another.
The parties separated comparative recently in turbulent emotional circumstances. In common with the majority of parents, who come into court seeking an adjudication of parenting issues between them, they do not communicate well and have scant resources to create organically or incrementally a respectful and empathetic parenting relationship with one another. In my view, it cannot be the intent of the legislature to rule out shared parenting in all of these cases.
In any event, the presumption deals with the allocation of parental responsibility, not the allocation of time, which a child should spend with each of his or her parents. In this case, both parties want to have parental responsibility for X because of their love for him and their interest in his ongoing development.
I have found that both Mr Weaver and Ms Ullman have much to offer X, as he grows into maturity. In these circumstances, I am not satisfied that it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
Although it may be difficult, in the short to medium term, for the parties to consult with one another about all major long-term issues which are likely to arise in respect of X, it is my view that they should at least try to do so. It is implicit, in such a state of affairs, that the parties are to keep the other informed about these issues and not embark upon any unilateral decision making, which is likely to worsen rather than improve their parenting relationship.
As the current dispute between the parties, regarding which primary school X should attend, indicates, there are many pitfalls to the parties exercising equal shared parental responsibility for X. However, for the reasons set out above, I do not think that this, of itself, should rebut the application of this presumption. In my view, it would not be in X’s best interests, at this stage, to create a defacto hierarchy in respect of his parents.
What should follow from the presumption – reasonable practicality
The next part of the exercise is to consider what should follow from the presumption. The consequences of the presumption are mandated by section 65DAA. I am required by the applicable legislation to consider an equal time arrangement first.
It is only when such an arrangement is ruled out, on the basis of a proper consideration of the child concerned’s best interests and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.
Although initially the parties agreed to an equal time arrangement, neither wants it now. In my view, when the practical realities of X’s life are considered, an equal time arrangement is not feasibly possible.
Section 65DAA(5) provides a checklist for the court of what to consider in the context of what is practicable and what is not in parenting relationships, particularly whether it is feasible to impose either an equal time regime or a substantial and significant time arrangement.
The parties live in reasonably proximity to one another in suburban Adelaide. However, they do not communicate effectively with one another. There are also some indications that X is not coping well with the current equal time regime.
As X grows older, there are likely to be more rather than fewer scheduling issues arising between the parties regarding X’s parenting. He is likely to engage in more extramural activities and have a wider social life. He will take up and discard sporting and other leisure activities. His parents will have to deliver and collect him from such activities.
Inevitably, as X moves between his parents respective homes, items he will need will be left behind – sports clothes; an item required to complete his homework; a musical instrument; – to give but a few examples. The parties will have to coordinate who will be responsible for collecting these items and for ensuring that X attends, on time, at his out of school hours activities.
All this will have to be done in the context of the parties’ busy lives. At the present time, the parties have not exhibited any capacity to solve these sorts of problems in a cooperative fashion, or even reach consensus about what X’s extramural activities and social commitments should be.
Mr Weaver complains that Ms Ullman does not take X to his friend’s birthday parties. The extent of X’s involvement at OHSC remains a bone of contention between the parties. Regrettably, there is the potential for there to be friction between the parties, on every occasion they come into direct contact with one another.
In my view, the practical realities of the relationship between the parties, which is unlikely to change in the short to medium term, effectively rule out an equal time arrangement, even if one of the parties advocated for it. In these circumstances, X must live more with one parent than the other. In my view, an overall assessment of all the applicable section 60CC factors indicates that the parent who should have predominant care of X is the mother.
The next consideration, which arises, is whether there should be orders made which would result in X spending substantial and significant time, with his father, within the parameters envisaged by section 65DAA(2). The definition, in this regard, is an extensive one.
The section speaks of week days; weekends; holidays; special occasions; and time which allow a parent to be involved in a child’s daily routine.
In my view, the emphasis on a child’s daily routine and the use of the adjectives substantial and significant entail that a parent spending time with a child pursuant to such an order will spend lengthy periods of time with the child concerned, in a variety of settings.
Again, I am concerned that the parties’ current parenting relationship is not conducive to such an ambitious regime because of the deficits in communication between them.
At this stage, I do not consider it feasible for there to be a regime put in place for X to spend alternate weekends and two or three days of alternate school weeks, in his father’s care, with the ultimate aim of incorporating Mr Weaver into X’s daily routine. Rather, I think such a regime has the potential to miscarry seriously and leave X with a sense that his life is lacking in consistency.
However, for the reasons provided earlier in this judgment, X is likely to benefit from having a sense that his father is meaningful involved in his life. To achieve such an outcome, the time X spends with his father needs to have both sufficient quantum and variety. There are dangers implicit in confining Mr Weaver to the role of holiday or weekend dad, given the extent of his involvement in X’s care to date.
In my view, it is both appropriate and calculated to be in X’s best interests, for orders to be made which will allow X to spend time with his father on weekends, during school holidays and on special occasions. More problematic is a regime, similar to the current one, which enables Mr Weaver to be involved in X’s daily routine.
At present, Mr Weaver prepares X for school in one week of each fortnight. He regularly prepares X’s evening meal and is extensively involved in other day to day aspects of X’s care, particularly at his school and OHSC.
Accordingly, at the present time, on any view, Mr Weaver is a living presence in X’s life. In this context, I am also concerned that X is likely to miss his father if he is only able to see him on alternate weekends. In addition, such a regime has the potential to reduce the depth of X’s relationship with his father.
In my view, considerations of this kind militate in favour of a regime, which falls short of being a substantial and significant time regime but still allows X to interact with his father in a variety of settings, including particularly the school week. But, given the difficulties in the parties’ parenting relationship, I must be careful about being too ambitious in this regard.
Conclusions
I have come to the conclusion that the parties in this case should have equal shared parental responsibility for X but that it is neither in his best interests nor reasonably practicable for the child to spend either equal periods of time or substantial and significant periods of time in his father’s care.
In reaching this conclusion, I have formed in mind Ms C’s concerns about Mr Weaver’s schedule and his reliance on OHSC for X. However, these concerns do not necessarily mean that Mr Weaver should be disqualified from providing care for X during the school week.
Like many parents, in this day and age, Mr Weaver needs to work to support both himself and X. In providing for X financially, Mr Weaver is discharging one of the fundamental responsibilities of being a parent, namely providing financially for his child.
In addition, OHSC provides considerable benefits for children, particularly in regards to their socialisation with other children. In my view, there are likely to be significant benefits arising for X if he is able to maintain some connection with his classmates at (omitted) Primary School and its OHSC.
However, without doubt, the issue of which primary school X should attend, from now on, is a vexed and complicated one. Mr Weaver favours continuity and consistency for X. On the other hand, Ms Ullman, given that X is going to live predominantly with her, favours the school which is most convenient to her home.
I have not been provided with any extensive evidence regarding the academic superiority of (omitted) Primary School over (omitted) Primary School. I am not prepared to accept that a private school is automatically than a public one. In my view, the evidence available to me, indicates that (omitted) Primary School is currently suitable to X’s needs.
Although, for reasons provided earlier, I consider that X most likely would be able to adjust to a change of school, nonetheless the mother’s proposal is a significant one for X, particularly in the context of the other changes which the court will make in this case. The orders, which I envisage, will see X spending one school night per week in his father’s care.
The rationale of this regime to provide X with at least some sense that his father remains involved in his day to day regime and to avoid there being a lengthy period between his direct physical interactions with his father. The most logical day for this interaction is overnight on every Wednesday. This, when coupled with alternate weekend periods, from after school on Friday until the commencement of school the following Monday will mean that the longest period X goes without seeing his father will be about five days.
This regime, when coupled with Mr Weaver’s work roster and X’s familiarity with (omitted) Primary School and its OHSC militates in favour of X attending (omitted) Primary School notwithstanding he will be living predominantly with his mother and (omitted) Primary School is far more convenient to her.
In my view, it is likely to be beneficial for X if he is able to enjoy the continuity in his educational arrangements, which is offered by his ongoing attendance at (omitted) Primary School. X has made friends at the school and Mr Weaver appears to have successfully involved himself in the school community, particularly in terms of forming relationships with other parents who utilise its OHSC. Although unlikely to be catastrophic for X, it is likely to be unsettling for him to have start afresh at another school and make new friends.
Although the emphasis in parenting cases is obviously on the best interests of the child who will be affected by the court’s order, those best interests are not the only consideration in the case. The court must also give consideration to the convenience of any other person, including a parent, who will be effected by the outcome of the case.
Issues concerning the divergence of a child’s best interests from what a parent perceives to be his or her future aspirations in life most frequently arise in what lawyers term relocation cases, that is cases concerning a parent who wishes to live with the child concerned far distant from the child’s other parent.
In this context Kirby J in AMF v AIF[19] said as follows:
“… it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction … they are not the sole consideration … statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as [the Family Law Act 1975] … is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.”
[19] See AMF v AIF (1999) FLC 92-852 at 86,050
In Eden, which was a case concerned with which school a child should attend, Thackray J, after citing this passage in AMS said as follows:
“In my view, whilst the Magistrate was right to conclude that the “focus” of his decision should be the impact on the child, I consider he erred in failing to have any regard at all to what was a very important element of the father’s case, namely that the change of school would be a considerable inconvenience to him and would have financial implications. The legitimate interests of the parents in securing an arrangement that was convenient for them was, in my view, an appropriate matter to be taken into account. This is especially so in a case where his Honour had properly recognised that the child would “probably do well at either school”, and that the decision was probably more important for the parents than it was for the child.
Decisions made by parents in “intact” families about the education of their children commonly take into account the convenience of the parents, especially in working out transport arrangements. Financial concerns are also routinely taken into account. Consideration of these factors should not be seen as affording primacy to them over the interests of the children, since children’s interests cannot be viewed in isolation from the convenience and financial stability of their parents.”
Undoubtedly, (omitted) Primary School is far more convenient for Ms Ullman. There is also a compelling logic to a child attending a school, which is proximate to his or her home. However, this is not an unbending rule and many parents, in intact families, choose to educate their children at schools situated a reasonable distance from where the family concerned lives.
At the end of the day, Ms Ullman has shown that she is able to collect and deliver X to (omitted) Primary School. In my view, the distance between her home and the school is a manageable one. In my view, the benefits available to X of staying at (omitted) Primary School outweigh the inconvenience to Ms Ullman.
In addition, if X remains at (omitted) Primary School, I consider that it will be easier for Mr Weaver to maintain his sense of connection to X’s day to day life, particularly his educational needs and development than if the child is transferred to another school.
In all these circumstances, I have come to the conclusion that X’s best interests will be served if he remains at (omitted) Primary School and Mr Weaver is able to remain engaged with the school. He is likely to be resentful if X moves to another school, against his wishes, and this is likely to drive further conflict between him and Mr T.
I propose making orders that will see X spending approximately half of each school holidays with each of his parents and special occasions involving the child being evenly distributed between the parties. In my view, such a regime, when coupled with the arrangements I envisage for term time, will ensure X maintains a meaningful level of relationship with both his parents but will also have stability and continuity in arrangements for his care. This need for stability is important given the fraught nature of the relationship between his parents.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and thirteen (313) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 30 August 2012
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