Underwood and Pratt
[2014] FCCA 3079
•4 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UNDERWOOD & PRATT | [2014] FCCA 3079 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility – whether children should spend equal time with each parent – four children aged 12 years, 10 years, 7 years and 5 years – where mother seeks orders that children should live with her and spend time with father – where orders provide that the parties’ two sons should spend an additional night each fortnight each fortnight with their father – public holidays – provision made for two younger children to spend public holiday Mondays with their father where the public holiday immediately follows a weekend where the children would otherwise be spending time with the father – whether children’s time with the father should increase annually. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA |
| Applicant: | MS UNDERWOOD |
| Respondent: | MR PRATT |
| File Number: | NCC 2003 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 13-14 October, 28 November 2014 |
| Date of Last Submission: | 28 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Hunter Family Law Centre Pty Ltd |
| Respondent: | In person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the children W born (omitted) 2002, X born (omitted) 2004, Y born (omitted) 2007 and Z born (omitted) 2009.
The children W, X, Y and Z are to live with the Mother.
The children W, X, Y and Z are to spend time with their father as follows:
(a)During the school term:
(i)on each alternate Friday from immediately after school or 3:00pm until the commencement of school on the following Monday or 9:00am for the children Y and Z and until the commencement of school on Tuesday or 9:00am for the children W and X PROVIDED THAT if the Monday is a public holiday then the children Y and Z will also spend time with the Father until the commencement of school or 9:00am on the Tuesday; and
(ii)in the off week from immediately after school or 3:00pm on the Monday until the commencement of school or 9:00am on the Tuesday;
(b)During the school holidays at the end of Term 4 in 2014 from 2:00pm on Christmas Day until 2:00pm on 8 January 2015 for all four of the children and for W and X from 2:00pm on 18 January until 2:00pm on 25 January 2015;
(c)During the school holidays at the end of Terms 1, 2 and 3 from 2:00pm on the middle Saturday until 2:00pm on the last day of the school holidays;
(d)During the school holidays at the end of Term 4 in 2015 and all odd numbered years thereafter from 2:00pm on 4 January until 2:00pm on the last day of the school holidays; and
(e)During the school holidays at the end of Term 4 in 2016 and all even numbered years thereafter from 2:00pm on the first day of the school holidays until 2:00pm on 4 January; and
(f)At such other times as the parties may agree.
To avoid confusion the last day of the school holidays means the day before the children are required to attend school at the commencement of the next school term.
The children’s time with the parties in accordance with Order (4) above will be suspended to allow the children W, X, Y and Z to spend time with the Mother and Father on special occasions as follows:
(a)During the Christmas period in 2014 and even numbered years thereafter with the mother from 12:00 noon on Christmas Eve until 2:00pm on Christmas Day and with the father from 2:00pm on Christmas Day until 6:00pm on Boxing Day;
(b)During the Christmas period in 2015 and odd numbered years thereafter with the father from 12:00 noon on Christmas Eve until 2:00pm on Christmas Day and with the Mother from 2:00pm on Christmas Day until 6:00pm on Boxing Day;
(c)On Easter Sunday in each year with the mother from 9:00am until 12:00 noon;
(d)On the weekend that includes Mother’s Day the children will spend time with the mother from 9:00am on Mother’s Day until the commencement of school or 9:00am the following day;
(e)On the weekend that includes Father’s Day the children will spend time with the father from 9:00 am on Father’s Day until the commencement of school or 9:00 am the following day;
(f)On the children’s birthdays all four of the children will spend time with the parent not otherwise having the care of the children on that day from 10:00am until 2:00pm if on a day when the children are not required to attend school or from 5:30pm until the commencement of school the following morning if on a school day;
(g)On the Mother’s birthday the children will spend time with the Mother from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school or from immediately after school until the commencement of school or 9:00am the following morning if on a school day; and
(h)On the Father’s birthday the children will spend time with the Father from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school or from immediately after school until the commencement of school or 9:00am the following morning if on a school day.
Orders (4) and (6) above will be implemented between the parties and failing agreement by the parent requesting the care of the children or a responsible adult nominated by that parent collecting the children from and returning the children to:
(a)the children’s respective schools on school days; or
(b)the other parent’s residential address on a day when the children are not required to attend school.
Both parents are to have liberal telephone communication with the children at all reasonable times and the parent having the care of the children must facilitate telephone communication with the other parent at the request of any of the children.
Each party is restrained by injunction from criticising or denigrating the other party or any member of the other party’s family in the presence or hearing of the children or permitting any third person to do so.
Each party is restrained by injunction from discussing these Court proceedings with any of the children or showing any of the children any Court documents or any correspondence relating to parenting arrangements or these proceedings or permitting any third person to do so.
Each parent must inform the other parent as soon as is reasonably practicable if any of the children suffers a serious illness or injury or is prescribed any medication or is required to be treated in a hospital or by a specialist medical practitioner.
Each parent must inform the other parent as soon as is reasonably practicable of any emergency relating any of the children or of any matter detrimental to the welfare of any of the children.
Each parent must inform the other parent within 24 hours of any change to his or her telephone contact numbers or residential address.
IT IS NOTED that publication of this judgment under the pseudonym Underwood & Pratt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2003 of 2010
| MS UNDERWOOD |
Applicant
And
| MR PRATT |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of four children, W, X, Y and Z, for orders that the children live with her and spend time with their father on Monday night in one week of each fortnight and in the other week of the fortnight from Friday night until Monday morning for the two girls and until the Tuesday morning for the two boys.
The Father seeks order that the children spend equal time with each parent on a week about basis.
Both parties seek orders that they should have equal shared parental responsibility for the children.
Background
The parties were married on (omitted) 1999.
There are four children of the marriage:
a)W, aged 12, was born on (omitted) 2002;
b)X, aged 10, was born on (omitted) 2004;
c)Y, aged 7, was born on (omitted) 2007; and
d)Z, aged 5, was born on (omitted) 2009.
The parties separated on (omitted) 2009 when the Mother left the matrimonial home with the child Z, who was then a very young baby. The following day she took the other three children to live with her.
The parties were divorced by Order of this Court on 15th October 2010.
The Mother commenced proceedings by filing an Initiating Application on 17th July 2013, seeking interim orders that the father should return the children W and X to her care and, if he did not do so, that a Recovery Order should issue. She sought final orders that the children should live with her and spend time with their father.
The Application was returnable at the Newcastle Registry of the Court on 30th July 2013, on which date the parties entered into interim Consent Orders providing that the children should live with the Mother and spend time with their father on alternate weekends from Friday afternoon until Monday morning and on the Tuesday afternoon of the off week of the fortnight until the following Wednesday morning, as well as for a week during each of the school holidays.
A Limited Issues Family Report was released on 11th September 2013.
The Father filed an Amended Response on 25th September 2013.
A Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth) was ordered by his Honour Judge Coakes on 8 October 2013. The Report was released on 17th April 2014.
The parties entered into an informal arrangement on 17th February 2014 whereby the father’s time with the boys W and X increased to five nights per fortnight.
The Mother filed an Amended Initiating Application on 18th September 2014.
Evidence
The Mother relied upon her affidavit sworn 18th September 2014.
It was her evidence that after she separated from the Father in May 2009, she lived with the children at her sister’s home for three months and then obtained rental accommodation. She has lived in her current home since about May 2012. The children spent time with their father regularly by arrangement.
The Father commenced his relationship with his current partner, Ms E, in about October 2012.
The Mother deposed that as from about Christmas 2012 she “felt more pressured” by the Father to move to a 50/50 shared care arrangement with the children.[1]
[1] Affidavit of Ms Underwood 18.9.2014 at paragraph [30]
The Mother set out in her affidavit her views about the children’s time with their father:
41.Presently the children spend time with Mr Pratt alternate weekends from Friday until Monday for the girls and until Tuesday morning for the boys and Tuesday night in the following week.
42.I believe these arrangements are working well for the children.
43.On occasion, I make arrangements for the children, or some of them, to spend additional time with Mr Pratt. I try to remain flexible and accommodate Mr Pratt and the children’s requests for extra time with Mr Pratt.
44.Despite my difficulties with Mr Pratt, I consider Mr Pratt to be a good father to the children and they have a loving relationship with him and his partner Ms E.
45.Ms E and I get on well together and I support the children’s relationship with her and her children and granddaughter….[2]
[2] Ibid at [41]-[45]
The Mother also deposed:
47.It is my application that the children live with me and spend time with Mr Pratt alternate weekends from Friday afternoon until Monday morning (with the boys to stay with Mr Pratt until Tuesday morning) and then Monday night in the other week. I also think that it is appropriate that on a final basis the children spend half of the school holidays and special occasions with Mr Pratt. This is a significant increase from our agreement from July 2013.[3]
[3] Affidavit of Ms Underwood 18.9.2014 at [47]
The Mother also considered the question of increasing the children’s time with their father in the future, saying:
50.I am also willing to consider increasing the children’s time with Mr Pratt on a permanent basis in a few years time. At that juncture, I propose to review the children’s emotional and attachment development, and consider how they each might cope with a permanent increase in time with Mr Pratt, and suggest that Mr Pratt and I participate in mediation or family counselling.
51.However, at this point in time, I do not support increasing the children’s regular week-by-week spend time arrangements as I do not believe such a change would be in the best interests of the children. I do not think X, Y and Z will cope living equally between the households. W seems content with the current arrangement that he live primarily with me and spends time with Mr Pratt.[4]
[4] Ibid at [50]-[51]
The Mother was cross-examined by the Father. She was unshaken in her evidence.
The Father relied on the following affidavits:
a)his original affidavit of 26th July 2013;
b)his affidavit of 19th September 2014; and
c)the affidavit of Ms E of 19th September 2014.
The Father and Ms E, the Father’s partner, both gave oral evidence.
It was the Father’s evidence that he lives in a privately rented 5 bedroom home with his partner Ms E, where they had lived for the past 19 months. Ms E’s two children, a boy aged 10 and a girl aged 12 live with them on a full-time basis. The father and Ms E are also full-time foster carers for Ms E’s granddaughter, a little girl aged two and a half.
The Father deposed that:
21.All of the children, but particularly the boys, have regularly commented to me that they enjoy their time with me and would like more time in our home.
22.From July 2013, W, X, Y and Z have been with me every second weekend from Friday evening to Monday morning and every second Tuesday evening to Wednesday morning.
23.Starting from Monday 17th February 2014 W and X started staying from Friday evening to Tuesday morning every second week and Tuesday evening to Wednesday morning every other week.
24.Y has expressed a desire to me to be allowed to come as often as the boys do.[5]
[5] Affidavit of Mr Pratt 19.9.2014 at [21]-[24]
The Father was cross-examined at some length by Mr Graham of counsel, who appeared for the Mother. In his cross-examination, the Father was asked about a request that he made through the solicitor who was acting for him at the time for information about the children’s treating doctors, including a Dr M. The Father said that he telephoned Dr M and visited him at his consulting rooms. When asked by Mr Graham what the father’s complaint was, the father said that the mother had only given him Dr M’s telephone numbers. From the father’s answers in respect of this issue I formed the impression that he was rather controlling in respect of his dealings with the Mother. He obtained information about the child straight from the doctor, so it is hard to see what the problem was.
Ms E swore her affidavit on 19th September 2014. It is her evidence that she has been in a relationship and living with the Father for two years. She stated at paragraph [3] of her affidavit:
As a result of this relationship I have developed close relationships with W, X, Y and Z. I care very deeply for each of the children.[6]
[6] Affidavit of Ms E 19.9.2014 at [3]
Ms E deposed that the children have expressed a wish to spend more time with their father:
14.The children have all expressed to me a desire to have more time with their dad, especially W and X.
15.W and X have each initiated conversations with me telling me that they “wish mum would let them do 50/50”.
16.Y has said words to the effect “I want to come the same time as the boys. It’s not fair that they get more time with Dad than I do.”
17.Y also said words to the effect “I will just keep nagging Mum until she lets me”.
18.I heard W respond to Y words to the effect “Don’t annoy Mum about coming for more time or mum will never let any of us come here more”.
19.W has told me words to the effect “I won’t ever forgive mum if she stops me from coming 50/50”.
Ms E was cross-examined by Mr Graham. She said that her two children see their father under supervision at least four times a year. There have been Apprehended Violence Orders against him in the past and he has served a prison sentence. She also said that her granddaughter spends about three days with her mother every five weeks. She denied that the children Y and Z had ever gone with her children to see her children’s father.
Ms E said that she suffers from Lupus and is unable to drive a motor car as a result of that condition. She has done a lot of research into Lupus and cannot attribute any flare up of her condition to stress.
Ms E made a very favourable impression as a witness. My contemporaneous notes are that she appeared to be sensible, reasonable and intelligent. She was an articulate witness.
The Family Reports
Each party relied on the Limited Issues Family Report of 11th September 2013 and the full Family Report of 17th April 2014. The Reports were prepared by Ms J, a Family Consultant at the Newcastle of the Court. Ms J gave oral evidence by telephone on 28th November 2014.
The Orders Sought
The Mother sought Orders as set out in her Amended Application filed on 18th September 2014.
Essentially, the order sought by the Mother are that:
a)The parties should have equal shared parental responsibility for the children;
b)The children should live with their mother;
c)The children should spend time with their father:
i)During the school term, each alternate Friday from after school (or 3:00pm) until before school on the following Monday (or 9:00am) for Y and Z and until before school on Tuesday (or 9:00am) for W and X; and in the alternating week the children shall spend time on Monday from after school (or 3:00pm) until before school on Tuesday (or 9:00am);
ii)During the school holidays at the end of Term 4 in 2014 from, from 2:00pm on Christmas Day until 2:00pm on 8 January 2015; and for W and X additional time from 2:00pm on 18 January 2015 until 2:00pm on 25 January 2015;
iii)Thereafter, during school holidays at the end of the terms 1, 2 and 3 from 2:00pm on the middle Saturday (or middle Wednesday, whichever is nearest the midpoint of the school holidays) until 2:00pm on the last day of school holidays;
iv)During the school holidays at the end of Term 4 in EVEN numbered years from 2:00pm on the first day of school holidays until 2:00pm on 4 January; and in ODD numbered years from 2:00pm on 4 January until 2:00pm on the last day of school; and
v)At other times as may be agreed.
d)There were standard and uncontroversial orders proposed to deal with the Christmas period in even numbered and odd numbered years, and orders to cover such special occasions as:
i)The Mother’s Day weekend;
ii)The Father’s Day weekend;
iii)The children’s birthdays;
iv)The Mother’s birthday; and
v)The Father’s birthday.
It is the Mother’s case that she amended the orders that she seeks to follow the recommendations of the Family Consultant in the Family Report of 17th April 2014.
The orders sought by the father are contained in a Minute of Orders in his Outline of Case Document, which he filed on 10 October 2014.
Essentially, the orders that the Father now seeks are that:
a)The parties should have equal shared parental responsibility for the four children;
b)During the school term the boys W and X would spend equal time with each parent on a week-about basis, with changeovers occurring on Friday afternoons;
c)The girls Y and Z would live initially with their mother and spend time with their father:
i)During the school term, on Tuesday night overnight in the first week of the fortnight and from after school on Friday until Monday morning in the second week of the fortnight; and
ii)During school holidays at the end of Terms 1, 2 and 3, for the first week of the school holidays commencing on the Friday afternoon, thereby coinciding with the week when the boys would be living with their father; and for periods of two weeks during the Christmas/January school holidays;
iii)The girls’ time with their father would increase by one night per fortnight in the second week of the fortnight from January 2016 and increasing each year until they also live in an equal time arrangement on a week-about basis.
The evidence of the Family Consultant
For the purpose of preparing the Family Report of 17th April 2014 the Family Consultant interviewed the following people:
a)the Father;
b)the Father’s partner, Ms E;
c)the Mother;
d)the child W;
e)the child X;
f)the child Y; and
g)the child Z.
The Family Consultant saw the issues in dispute between the parties as:
a)whether all four children should be in a shared care arrangement;
b)whether only the two boys should live in a shared care arrangement; or
c)whether the current arrangement should continue.
The Family Consultant described the Mother as having shown an ability to facilitate and encourage a close and continuing between the children and the Mother as evidenced by her adhering to the current orders and agreeing to the children spending extra time with their father when they have asked to. The Mother’s concerns were that the three younger children did not have the emotional capacity or maturity to cope with moving between the two homes in a shared care arrangement. Her view was that only W, the eldest child, had the emotional capacity for shared care.
The Family Consultant said of the father:
35.The father’s view on shared parental responsibility is that this ought to happen as he values the co-parenting role and wishes to remain involved in any decisions made for the children.
36.The father’s view on the children spending equal time with the mother is that he feels the older three children would cope with shared care and Z is not too far away from having the emotional capacity to move between the two households on a weekly basis.[7]
[7] Family Report 17.4.2014 at paragraphs [35]-[36]
The Family Consultant described W, the older boy, as a happy, thoughtful child and noted that he reported that he was happy at both of his parents’ homes:
42.W said that he has been happy with the way he is spending time with [his] father because the mother has allowed him and X to have extra time with the father without Y and Z being present.[8]
[8] Family Report at [42]
He also said that he would be disappointed if the orders remained the same and he predominantly lived with his mother, but he would have to do what the Judge said. Whilst he would like to live week about with each parent he would do what was asked of him as long as it is no less than five nights with the father and that there was some flexibility with school holiday time “as he loved spending the extended block of time with the father”.[9]
[9] Ibid at [49]
X, the 10 year old boy, appeared to the Family Court of Australia Consultant as a reserved child who was not as interactive or as forthcoming as the other three children:
He said he did not have any concerns about the mother’s home, but at the father’s home he finds it gets “overcrowded”…He said that sometimes all he wants is some peace and quiet and he can only get that at the mother’s home.[10]
[10] Family Report at [55]
X’s views appeared to be rather ambivalent:
60.X’s views are that he would like shared care as long as Y and Z are not present for the extended period of time….
61.X appears to be confused and is trying to please both the mother and the father as he loves them and does not want to disappoint them. The difficulty may be that if X does enter into a shared care arrangement and finds that he cannot cope that he may feel obligated to stay in an arrangement that is not meeting his needs.
62.As previously stated, X is a very emotional child and if shared care does not meet his needs then his emotional and psychological state will be negatively impacted upon…[11]
[11] Ibid at [60]-[62]
Y, then aged 6 years and 11 months, presented as a very intelligent, happy child. The Family Consultant reported that:
Y said that she is happy the way things are now and is not sure if she wants to live “50/50”. She said ‘I think I could do 50/50 and then if I didn’t like it then dad could tell mum and I could go back home. When asked where her home was she instantly said the mother’s home is her “proper home”. She said when she is with the mother she misses the father “a teeny weeny bit”, but when with the father “I miss mum too much”. She continued to say “Z is the one who misses mum the most. She cried and cried. She gets really upset.” Y said she and Z were allowed to speak to the mother and after speaking to her they felt much better.[12]
[12] Ibid at [68]
The Family Consultant had these comments to make about Y’s expressed views:
70.These views are developmentally appropriate as Y loves both parents and enjoys spending time with them, but it is clear that her primary attachment is the mother and therefore not surprising that she misses the mother more than the father and as such views the mother’s home as her “proper home”.
71.It would appear that Y also feels a sense of obligation to please the father in that she feels she could give “50/50” as go, but is evident that it is an arrangement in which she is not desperate for and there may well have significant emotional and psychological repercussions if she were forced into an arrangement that she is ill equipped to cope with.
72.Y wanted the Judge to know that she is unsure about “50/50” and thinks she may miss the mother too much. She said she would like to spend some time with the father on her own so as not to share him with everyone else.[13]
[13] Family Report at [70]-[72]
The Family Consultant described Z, the youngest of the four children at the age of 5 years and one month at the date of interview, as a gently, happy child.
The Family Consultant said that:
75.Z reported that she enjoys spending time with both the mother and the father and has lots of fun at both homes…
76.Z reported that when she is at the father’s home for too long she misses the mother. She said she did not like being away from the mother for two weeks and sometimes cried when she went to bed….
77.Z said that she feels like the mother’s home is her home “because it just is. I live there with mum and visit dad.” She was asked how she might feel if she was to live one week with the mother and one week with the father. Z said “No that would be no good. That would be like visiting both of them”.[14]
[14] Ibid at [75]-[77]
The Family Consultant had these comments to make about her interview with Z:
80.These views are developmentally appropriate as the mother is quite clearly Z’s primary attachment and due to her young age it is reasonable to expect that she would miss the mother and fret for her. However, it is not surprising that the father has the skills to manage Z’s distress as it is evidence that he is a very warm and caring father who has the ability to respond to the children’s level of distress.
81.Z wanted the Judge to know that she does not want to live in a shared care arrangement as she wants to live predominantly with the mother and spend time with the father as per current orders.[15]
[15] Family Report at [80]-[81]
The Family Consultant observed the children interacting with their mother and their maternal grandmother, and then with their father and Ms E. It was noticeable that the three younger children appeared to excited to see Ms E, who responded warmly to them. The Family Consultant described Ms E in positive terms:
Ms E presented as a very thoughtful, compassionate person who is very supportive of the father, but who is also able to understand and acknowledge the mother’s point of view. It is evident that she possesses the ability to be empathic, kind and understanding which is why the children have formed such warm and loving relationships with her.[16]
[16] Ibid at [90]
The Family Consultant recommended that:
a)The parties should have equal shared parental responsibility for the children;
b)The children should live with the mother and in week one of each fortnight during the school term the boys spend time with the father from after school on Friday until before school on Tuesday and the girls spend time with the father from after school on Friday until before school on Monday;
c)In week two of each fortnight during the school term the children should spend time with the father from after school on Wednesday until before school on Thursday.
d)If extra time is to be negotiated it is the parents and not the children who should do the negotiating.
e)There should be additional time during holidays and on special occasions.
f)Telephone and Facetime contact should occur on days and times as agreed.
The Family Consultant was unavailable on 13th and 14th October but gave evidence over the telephone on 28th November 2014. She was unshaken in her evidence in cross-examination. Ms J told the Father in his cross-examination of her that it was evident that the children had a close and loving relationship with him, Ms E and with their mother. She said that the children were lucky to have such a relationship with three adults.
Submissions
In his submission on behalf of the Mother, Mr Graham of Counsel told the Court that the children were “blessed” in that they have parents who love them and care for them. There are no disqualifying factors against either parent.
Mr Graham submitted that the current arrangements for the two girls, Y and Z, should stay in place. Orders to reflect those arrangements would see the children spending substantial and significant time with their father.
As for the two boys, it was submitted that the situation was somewhat more complicated. If the younger boy, X, cannot cope with a shared care arrangement it might have a psychological effect on him over the next few years. There is a fear that his toileting, which has been an issue for him in the past, may regress. He is the most reserved of the children and is trying to please both of his parents. In reality he does not want much change.
W, the older boy, presents as a child who is quite content with things the way they are. Whether by accident or design, W has been somewhat enmeshed in his father’s court case.
It was submitted that whilst both parties are parents who love their children. There are risks attached to the Father’s proposal. The younger children would be psychologically damaged by not spending as much time with their mother. The boys are already spending additional time with their father under the voluntary arrangement made between the parents.
Whilst it was conceded that at some time in the future circumstances may change, the Court cannot really do much about that possibility at this stage. The Court cannot make orders on supposition without evidence.
The Father submitted that the only real issue to be decided was the time the children spend with him. The boys are spending 150 nights a year with their father and the girls are spending 130 nights a year. The difference between the current situation and the Father’s proposal is 32 days for the boys and 52 days for the girls.
The Father submitted that the Family Consultant saw a change within three to four years.
There is no evidence of psychological harm or abuse with either parent.
Both of the boys, aged 12 and 10, he submitted, express a wish to spend more time with their father than they are now.
As for the girls, Y is only aged seven and Z is a shy and reserved five year old girl who has never lived with her father. It is likely that Z’s views will change with time. Z will start kindergarten in January, She should be given a year before there should be any change.
The Father submitted that the Court should make immediate orders for the boys to begin a shared care arrangement and that for the girls the Court should add one day per fortnight to the time they spend with their father until they, too, are in a share care arrangement.
The law in respect of applications for parenting orders
When a Court is dealing with an application for parenting orders under the Family Law Act 1975 (Cth), it must look at the provisions of Part VII of the Act. In particular, the Court should have regard to:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or the children, in this case) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in children’s best interests;
d)Section 61DA, which deals with the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for the children; and
e)Section 65DAA, which requires the Court to consider equal time with each parent or, in the alternative, substantial and significant time with each parent, where an order has been made that the parents should have equal shared parental responsibility for the children.
All of these matters have been considered, so far as they are relevant. The matters under sections 60CC and 65DAA will be discussed in some detail.
Equal Shared Parental Responsibility
This is a case where both parties seek an order that they should have equal shared parental responsibility for the children and the Family Consultant recommends in the Family Report that the parents should have equal shared parental responsibility.
There does not appear to be any reason why this should not be the case. There are no issues of abuse or family violence and it appears clear that equal shared parental responsibility would be in the children’s best interests.
I will order accordingly.
This, of course, then raises the issue of equal time with each parent or, failing that, substantial and significant time, as set out in s.65DAA of the Act. I will deal with this issue whilst considering the factors set out in s.60CC of the Act.
The best interests of the children
The best interests of the children must be the paramount consideration for the Court, as s. 60CA stipulates.
Section 60CC sets out how a Court determines what is in a child’s best interests.
The primary considerations are found in subsection 60CC(2), being:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case, it is obvious that there is a clear benefit to the children in having a meaningful relationship with two parents who clearly love them and provide a warm and nurturing environment for them.
It is equally obvious, in my view, that the Court can have no concern about the children being subjected to or exposed to abuse, neglect or family violence. The parents speak positively about each other’s qualities as parents. There is no family violence order in force, nor has there been led any evidence that there ever has been a family violence order.
This is one case where the additional considerations under subsection 60CC(3) are of greater relevance.
The first of these considerations, and a very important one, is that contained in paragraph 60CC(3)(a):
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the child’s views.
Section 60CD of the Act provides that the Court may inform itself of views expressed by a child by having regard to anything contained in a report given to the Court under subsection 62G(2) (i.e. a Family Report).
The Court has had the benefit of considering the two Family reports ordered in this matter and hearing the oral evidence of the Family Consultant who prepared the Reports. The Full Family Report of 17th April 2014 clearly sets out the views of each of the four children and provides some information about each child’s maturity and level of understanding. I should say that I found this particular report to be very helpful.
The children themselves are aged 12, 10, 7 and 5 years. The two boys are aged 12 and 10, and they have slightly different views.
W, the older boy, is probably the child who is most keen to spend more time with his father. He has said that he would be disappointed if an order were to be made that reduced the amount of time that he spends with his father to less than the current five nights per fortnight. He need not worry. It is clear that spending this amount of time with his father and Ms E is congenial to him, and there is nothing to warrant reducing that time.
X, the younger boy, is a bit more reticent. It appears that he is not as keen as his elder brother appears to be to have his time with his father increased to a block of seven nights a fortnight. He is not seeking a reduction of the time, but is not enthusiastic about increasing it, either. Interestingly, he appears to like the current arrangement where he and W actually spend one extra night per fortnight with their father without the two girls.
The girls are younger, at seven and five, and are less enthusiastic about moving to an equal time arrangement. Indeed, Z, the younger child, is strongly opposed to it. It is perhaps significant that she has lived with her mother since she was a young baby, as her parents separated when she was only two months old. The girls each regard the mother’s home as their home.
The children all have a warm and loving relationship with each of their parents. They also appear to have a warm and positive relationship with their maternal grandmother and the father’s partner, Ms E. They appear to have a good relationship with Ms E’s children and granddaughter, although the relationship with Ms E’s son has been problematic in the past.
The parents have taken every opportunity to participate in making decisions about their children, to spend time with them and communicate with them.
The parents appear to have fulfilled their obligations to maintain their children.
The likely effect on the children of any changes in their circumstances is one of the major issues. I am persuaded on the evidence that moving to a shared care arrangement would not have a negative impact for W but would not be beneficial for X or either of the girls at this stage.
There is no practical difficulty or expense involved in the children spending time and communicating with either of their parents.
It is obvious from the Family Report that each parent has the capacity to provide for the children’s needs, including their emotional and intellectual needs.
The parents have demonstrated a positive to their children and the responsibilities of parenthood.
There are no family violence issues or orders.
The Court must consider under s.60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. The father has modified his position slightly by submitting that the Court should make an order that the boys should go immediately into a week-about shared care arrangement and that the girls should have their time with him increased from the present level by the addition of one night per fortnight on an annual basis, commencing in one year’s time.
The Family Consultant has envisaged that the children, as they get older, may progress to a wish to increase the amount of time they spend with their father. As she said at paragraph [110] of the Family Report:
The father should not feel in any way despondent if at this point of time his proposal is not actioned into orders, as he has formed such a close and loving bond with the children that given time the children will in all likelihood benefit from shared care when they are somewhat older.[17]
[17] Family Report paragraph [110]
However, if and when the issue of shared care is revisited, “hopefully the parents would not need to come back to Court for further orders, as they should have developed the ability to negotiate time for the children on their own”.[18]
[18] Family report at [166]
It may be the case, as the Family Consultant suggests, that as the children mature over the next three to four years, there should be little reason not to consider a shared care arrangement for the children, or some of them. However, it is not possible to put a definite date on the matter, which is why I do not propose to make the orders that the father suggests, of increasing the amount of time the girls spend with him by one night a fortnight each year.
Section 65DAA of the Family Law Act
Where the Court has made an order, as it will in this case, that the parents should have equal shared parental responsibility for the children, the Court is required to consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent (s.65DAA(1)).
If the Court does not make such an order, the Court is then required by s.65DAA(2) to consider whether it is both in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.
It is clearly in the children’s best interests to spend substantial and significant time with each of their parents, and it would appear to be reasonably practicable.
It may be reasonably practicable for the children to spend equal time with each parent, but I am not satisfied that it would be in the children’s best interests at this time. The Family Consultant makes the point that the children “are a sibling unit and as such should be viewed holistically”.[19]
[19] Ibid at [109]
This does not mean that the needs and views of Z, the youngest child, should determine the entire parenting arrangement, and the parties have already taken the view, sensibly, that a slightly different arrangement will be appropriate for the two boys than the two girls. The boys are close in age, at ten and twelve, and it is reasonable that they should move together. Both boys have said that they like having extra time with their father without Y and Z being present.[20]
[20] Family Report at [42] and [58]
However, while X is still reticent about a week-about shared care arrangement, it would appear to be in the boys’ best interests for them to spend the same time with their father. It is quite possible that X might form the opinion that he would like to spend a bit more time in his father’s care, perhaps another night a fortnight, in about two years’ time, when he is twelve, the age X is now.
Similarly, it would appear be in the girls’ best interests to have the same arrangement as each other. They are relatively close in age, at seven and five, and a fair amount younger than their two brothers. It is more likely that the girls would not want to increase the amount of time they spend with their father to any significant amount until they are three or four years older.
Orders that are in the children’s best interests
It is for these reasons that the arrangements proposed by the Mother, which are more or less in line with the arrangements recommended by the Family Consultant, appear to me to be in the children’s best interests at this stage of their lives. It is just not possible to predict when, or if, the children will form a desire to spend more time in their father’s household on a regular basis, and an arbitrary annual increase in time is not supported by any evidence currently before the Court.
However, there is one relatively minor modification that appears to me to be appropriate. If the boys are to spend alternate weekends with their father until Tuesday morning, they will be with him on the Monday, whether or not the Monday is a public holiday. However, as the girls will be spending alternate weekends with their father but returning to their mother’s care from the commencement of school on the Monday morning, they would not spend time with him if the Monday happens to be a public holiday.
This seems to be an anomaly. In my view, if the Monday after the weekend when the children are with their father is a public holiday, the girls as well as the boys should spend the public holiday Monday with him and go to school on the Tuesday morning. That arrangement would allow the Father to go away for public weekend with his family if the children were to be with him that weekend, and give the girls the opportunity to spend an extra day with their father. As they get older, they would find this becoming more easy to cope with.
The downside for the boys would be that on a public holiday Monday they would lose their sister-free day, but it would only be an occasional event.
I propose to order accordingly.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 4 December 2014
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