Waddell and Waddell

[2016] FCCA 295

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADDELL & WADDELL [2016] FCCA 295

Catchwords:
FAMILY LAW − Whether the father’s time with children should be four nights or five nights.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 60DAA

Goode & Goode [2006] FamCA 1346

Applicant: MR WADDELL

Respondent: MS WADDELL

File Number: DGC 625 of 2014

Judgment of: Judge Phipps

Hearing dates: 5 & 6 October 2015

Date of Last Submission: 6 October 2015

Delivered at: Dandenong

Delivered on: 18 February 2016

REPRESENTATION

The Applicant: Appearing on their own behalf

The Respondent: Appearing on their own behalf

ORDERS

1. That all previous orders are discharged.

2. That the mother and the father have equal shared parental responsibility for the children W, born (omitted) 2004, X, born (omitted) 2006, Y, born (omitted) 2010 and Z born (omitted) 2012.

3. That the children live with the mother.

4. That the children spend time and communicate with the father as  follows:

   (a)During school terms;

   (i)Until 1 June 2016 each alternate week from 5.00pm Friday to the commencement of school on Monday, and if Monday is a pupil free day or a public holiday, the time conclude at the commencement of school Tuesday;

   (ii)Commencing 1 June 2016 each alternate week from 5.00pm Thursday to the commencement of school on Monday, and if Monday is a pupil free day or public holiday, that time concludes at the commencement of school Tuesday;

   (iii)Commencing 1 September 2016 and each alternate week from 5.00pm Thursday to commencement of school on Tuesday, and if Tuesday is a pupil free day or public holiday that time conclude at the commencement of school on Wednesday.

   (b)For seven days in each school term holidays as agreed and if not agreed the first seven;

   (c)For seven days in the 2016/2017 summer school holidays as agreed;

   (d)For 14 consecutive days in the 2017/2018 summer school holidays as agreed and each summer school holidays thereafter;

   (e)From 5.00pm on 24 December 2016 until 5.00pm on 25 December 2016 and each alternate year thereafter and from 5.00pm on 25 December 2017 until 5.00pm on 26 December 2017 and each alternate year thereafter;

   (f)On each child’s birthday and the father’s birthday for two hours on a school day and for four hours on a non-school day;

   (g)From 10.00am to 4.00pm on Father’s Day if the children are not spending time with the father;

   (h)By telephone on Tuesday and Thursday each week between 7.00pm and 7.30pm with the father to initiate the calls to the telephone number provided by the mother and the mother keep the father notified of the telephone number;

   (i)By FaceTime or other electronic communication on Sunday when the children are in the mothers care between 7.00pm and 7.30pm;

   (j)Otherwise as agreed.

5. That the children’s time with the father shall be suspended as follows:

   (a)The time pursuant to paragraphs 4(a)(i), (ii) & (iii):

   (i)During all school term holidays;

   (ii)For one period of 14 days either before or after the children spend time with the father in the 2016/2017 summer holidays;

   (iii)For all school summer holidays commencing with the 2017/2018 holidays;

   (iv)From 10.00am until 5.00pm on Mother’s Day;

   (v)From 5.00pm on 24 December 2017 until 5.00pm on 25 December 2017 and each alternate year thereafter and from 5.00pm on 25 December 2016 until 5.00pm on 26 December 2016 and each alternate year thereafter;

   (vi)If a child’s birthday or the father’s birthday occurs on a day on which the children are spending time with the father, for two hours on a school day and four hours on a non-school day.

6. Changeovers which do not take place at school, unless otherwise agreed, shall take place by the children being collected by the father or on his behalf from the mother’s residence at the commencement of time and the children being collected by the mother or on her behalf from the father’s residence at the conclusion of time.

7. Each party may attend occasions at day-care, kindergarten, school and extracurricular activities normally attended by parents.

8. Each party is entitled to receive all school and kindergarten reports photographs, newsletters and other material made available to parents.

9. Each party notify the other of any serious injury or illness suffered by the child whilst the child is in that party’s care.

10. Each party keep the other informed of their residential address and notify the other in writing of any change of the residential address within 24 hours of each change.

11. Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Waddell & Waddell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 625 of 2014

MR WADDELL

Applicant

And

MS WADDELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father Mr Waddell and the mother Ms Waddell dispute the amount of time the children should spend with their father.  The children are W, born (omitted) 2004 aged eleven, X, born (omitted) 2006 aged nine, Y, born (omitted) 2010 aged five and Z, born (omitted) 2012 aged three.  Both agree that the children should with live their mother.

Proposals

1. Both parties propose they have equal shared parental responsibility for the children and that they live with the mother.

2. The father proposes that the children spend time with him as follows:

   a)Each alternate week commencing 15 October 2015 from 5.00pm Friday to the commencement of school on Monday, and if Monday is a pupil free day or a public holiday, the time conclude at the commencement of school Tuesday;

   b)Each alternate week from 5.00pm Thursday commencing Thursday 4 February 2016 to the commencement of school on Monday, and if Monday is a pupil free day or public holiday, that time concludes at the commencement of school Tuesday;

   c)Each alternate week from 5.00pm Thursday commencing Thursday, 12 May 2016 to the commencement of school on Friday;

   d)For seven consecutive nights during each term holidays, with the holiday time to commence following on from the parent the children are with at the commencement of the school holidays, commencing 24 March 2016;

   e)From 5.00pm on 25 December 2015 to 5.00pm on 27 December 2015 and each alternate year thereafter;

   f)From 9.00am 11 January 2016 until 5.00pm on 21 January 2016;

   g)From 9.00am 21 December 2016 until 5.00pm 25 December 2016 and each alternate year thereafter;

   h)From 9.00am 28 December 2016 until 5.00pm 11 January 2016 and each alternate year thereafter;

   i)From 9.00am 11 January 2018 until 5.00pm 25 January 2018 and each alternate year thereafter;

   j)On the day of each parent’s birthday the child spend time with that parent for two hours on a school day and for four hours on a non-school day;

   k)On Father’s Day and Mother’s Day the children spend time with the respective parent from 5.00pm the previous day to 10.00am on Father’s Day and Mother’s Day;

   l)On each child’s birthday for two hours on a school day and for four hours on a non-school day;

   m)By telephone on Tuesday and Thursday each week between 7.00pm and 7.30pm with the father to initiate the calls to the telephone number provided by the mother and the mother keep the father notified of the telephone number;

   n)By FaceTime on Sunday when the children are not in the fathers care between 7.00pm and 7.30pm;

   o)In the event either parent intends to travel interstate with the children, he or she shall be required to inform the other party in writing documenting the date of departure from their home address, date of arrival back to their home address, no later than 7 days prior to departure;

   p)Each party keep the other notified of any change in residential address 14 days prior to relocation;

   q)Changeover take place by the mother delivering the children to the father’s residence at the commencement of time and the father returning the child to and the mother’s residence or school at the end of the time.

3. The mother proposes the children spend time with the father as follows:

   a)In the year 2015;

   i)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday with the father to collect the children from school or the mother’s residence at the beginning of time and return them to school or the mother’s residence at the conclusion of time;

   ii)From 5.00pm on 25 December 2015 until 5.00pm on 26 December 2015 and each alternate year thereafter;

   iii)Other times agreed to between the parties.

   b)In the year 2016;

   i)Each alternate weekend from 3.15pm or the conclusion of school on Friday until 8.45am or the commencement of school on Monday with the father to collect the children from school or the mother’s residence at the beginning of the time and return them at school or the mother’s residence at the conclusion of time, this time to be extended to 5.00pm should Monday be a non-school day;

   ii)For a period of seven days in the first week of each of the school holidays and each alternate year thereafter, including a period of seven days in the January school holiday period;

   iii)From 5.00pm 24 December 2016 until 5.00pm 25 December 2016 and each alternate year thereafter;

   iv)Other times agreed to between the parties.

   c)In the year 2017 and thereafter;

   i)Each alternate weekend from 3.15pm or the conclusion of school on Thursday until 8.45am or the commencement of school on Monday with the father to collect the children from school or the mother’s residence at the beginning of time and return them to school or the mother’s residence at the conclusion of time, this time to be extended to 5.00pm should Monday be a non-school day;

   ii)For a period of seven days in the second week of each of the school holidays and each alternate year thereafter, extending from the period of 14 days in the January school holiday period;

   iii)From 5.00pm 25 December 2017 until 5.00pm 26 December 2017 and each alternate year thereafter;

   iv)Other times agreed between the parties.

4. The mother then makes proposals for suspension on Christmas Day so that the children will spend time with her, time on Father’s Day and suspension so the children can spend time with her on each child’s birthday and her birthday and Mother’s Day.  She proposes changeover at school or her residence at the commencement of time and at the father’s residence at the end of time.  She makes proposals about attendance at school events and obtaining school information and notification about serious injury or illness and each party keeping the other informed of residential addresses.

Issues

1. The issues are:

   a)Whether the children eventually should spend five nights each fortnight with the father or four nights;

   b)How soon the extension to five nights or four nights should occur.

Background

1. The father was born on (omitted) 1982 and is aged 33.  The mother was born on (omitted) 1982 and is aged 32.  They commenced their relationship while living in (omitted), Queensland in 1999.  They moved to Brisbane in 2011 where both studied and were employed.

2. After the birth of the first child the mother stopped working full-time but did have a number of positions in (omitted) outlets.  The father joined the (employer omitted) in 2006 and did his training near Melbourne.  The mother and the children, two by then, could not move to Melbourne with him and moved back to (omitted) to the maternal grandmother’s house.

3. In 2007 the father was posted to Perth and the mother and family moved with him.  The father, a (occupation omitted), was away from home for periods of up to 6 months.  The wife for a short time worked night shifts at (employer omitted).

4. The mother says that the relationship deteriorated.  She says there were a range of emotional and financial problems as well as verbal abuse, bullying and intimidation.

5. The parties separated on 23 December 2012.  The family was visiting (omitted) for Christmas.  The mother says that the relationship ended because she discovered that the father had been having an affair.  She returned to Perth with the children in January 2013 and moved back to (omitted) in March 2013.  The father says this was with his agreement.

6. The father spent a few days with the children between January 2013 and March 2013.  He flew to (omitted) in March 2013 to attend his mother’s wedding.  He spent time with the children over a few days with the mother present.

7. In May 2013 the mother informed the father of her desire to move to Melbourne to continue her relationship with Mr S.  He lived in (omitted), Victoria and had been flying to Brisbane to spend time with the mother and children.  The mother says that she had the father’s agreement but she was served with an application on 3 July 2013 in which the father sought to prevent her relocating.  The mother says she had already arranged the move, given notice at her rental property, booked and paid for removalists and changed school enrolments for the children.  She believed she had acted in good faith because of the agreement she had with the father and she completed the move.

8. The mother and children moved from Brisbane to (omitted), Victoria on 9 July 2013.  The father then discontinued his proceedings.  The father came to Melbourne and saw the children for two consecutive weekends, 23 to 25 August 2013 and 30 August until 1 September 2013.

9. The father commenced these proceedings on 6 March 2014. He was then still living in Western Australia.  He had not spent time with the children since September 2013 and did not until 29 June 2014 when interim orders referred to below came into effect.

10. On the first court date on 16 April 2014 I ordered that the husband file and serve an affidavit setting out his living arrangements in Victoria and his proposals for the children to spend time with him.  On 20 June 2014 interim orders were made by agreement:

    a)That the children live with the mother;

    b)That the children spend time and communicate with the father:

    i)Each alternate Sunday from 9.00am to 5.00pm commencing 29 June 2014;

    ii)By telephone each Tuesday and Thursday between 7.00pm and 7.30pm;

    iii)By FaceTime each alternate Sunday the children were not spending time with the father at 7.00pm;

    iv)Otherwise as agreed.

11. The parties and children attended a conference with a family consultant under s.11F of the Family Law Act 1975 (Cth) on 1 September 2014. Following that consent orders were made providing for the children to spend time and communicate with the father as follows:

    a)Each alternate week from 9.00am on Saturday until 5.00pm on Sunday commencing 6 September 2014;

    b)With the child Z, each alternate week on Wednesday for two hours from 9.30am to 11.30am;

    c)With Z and X during the September/October 2014 school term vacation unless times were otherwise nominated from 26 September 2014 to 28 September 2014;

    d)By telephone on Tuesday and Thursday each week between 7.00pm and 7.30pm.

12. On 12 November 2014 I ordered that until further order the children spend time with the father as follows:

    a)Each alternate weekend from 5.00pm Friday to 5.00pm Sunday;

    b)From 5.00pm 24 December 2014 to 5.00pm 25 December 2014;

    c)For two periods of four days in the 2014/2015 summer holidays;

    d)In each of the 2015 school term holidays for a period of four days to be agreed;

    e)On the husband’s birthday and each child’s birthday for a period of two hours on a school day and four hours on a non-school day;

    f)From 10.00am to 4.00pm on Father’s Day.

13. On the same day I made an order for the preparation of a family report.

14. The father lives alone in (omitted) and the children spend time with him as in the interim orders.  His partner, Ms C was at the time of the family report interviews on 14 August 2015 awaiting transfer from Western Australia to Victoria.  The evidence at the hearing did not show whether she had transferred nevertheless the father was, in the near future, intending to live with her in Victoria.

15. The wife lives with Mr S in (omitted).  He has three children born to previous relationships.  Two aged 12 and 10 spend time with their father from Wednesday after school until Monday before school each alternate week and the youngest child aged five spends time with Mr S each alternate weekend and each Wednesday night.  The mother and Mr S are expecting their first child.  The mother is due to give birth in early 2016.

16. The father suffered depression in the (employer omitted) and Ms K, who conducted the child inclusive conference and prepared the family report said it appeared he currently suffers some symptoms that may be indicative of depression.  She said that the father appeared to be socially isolated when the children and his partner are not with him.  At the time of the family report the father’s partner was still with the (employer omitted) in Perth and was visiting on a regular basis, although there is a dispute about how often.  Ms K said there was no information to indicate that the father’s symptoms were impacting on his ability to care for the children.

Children’s provisions

1. Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth).  The pathway through the legislation described by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 starts with consideration of the best interest considerations in s.60CC and then the presumption in s.60CA that it is in the best interests of a child for the parents to have equal shared parental responsibility. That part of the pathway is not necessary because the parties agree on an order that they have equal shared parental responsibility for the children. That means I must consider the requirements of s.65DAA. This requires that when the court makes an order for equal shared parental responsibility the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable and if not whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.

2. Neither party proposes equal time.  Both parties’ proposals for the children’s time with the father include times which are described as substantial and significant time in s.65DAA(3).

3. In determining whether the substantial and significant time is reasonably practicable the court must have regard to the considerations described in s.65DAA(5).  The first consideration is satisfied.  The parties live close enough together to enable the collection and delivery of the children to and from school and from their homes to be done without difficulty.

4. The second and third considerations are the parties’ current and future capacity to implement the arrangement and to communicate with each other to resolve any difficulties.  The parties have discussed the arrangements for the children and while they have been unable to agree they do have the capacity to communicate so as to meet these requirements.

5. The fourth of the considerations is the impact the arrangement would have on the child.  This consideration is similar to one of the best interest considerations so can be dealt with under that heading.

6. Section 60B of the Family Law Act 1975 (Cth) sets out the objects and principles of Part VII. Section 60CA provides that in making a parenting order the best interests of the child is the paramount consideration. Section 60CC sets out the considerations the court must take into account in determining what is in a child’s best interests.

Best Interests

1. The family consultant Ms K prepared the family report.  She conducted the Child Inclusive Conference on 1 September 2014.  For Ms K the issue was not whether the children should eventually spend five nights each fortnight with the father but how soon this should occur.

2. Ms K’s recommendation for the children’s time with the father are:

   a)Each alternate weekend commencing from the conclusion of school Friday until the commencement of school Monday if Monday is a pupil free day or public holiday that time conclude at the commencement of school Tuesday;

   b)Following a three-month period of this time the time increase to four nights in each fortnight and following a further three month period a further night be added resulting in a spend time period commencing from the conclusion of school on Thursday until the commencement of school Tuesday;

   c)One week with each parent during school term holidays, holiday time to commence following on from the parent the children are with at the commencement of school holidays.  Ms K proposed special arrangements for Easter and Christmas.

3. Ms K records that during interview the mother agreed to the children spending five nights each fortnight with the father.  Ms K says that the mother considered they should be “built-up” eventually occurring once Z commences primary school.  Ms K says that the mother was positive about the children spending time with the father.  The mother did not have any concerns for Z in the current arrangements.  Ms K says the mother said positively that he happily follows his siblings.  The mother was unsure about the children living with the father five nights in each fortnight.  She considered there should be a gradual increase over two years before Z spent five nights with the father.  The mother considered it could be disruptive for Z because there was not a lot of consistency of care between the two homes.  There was a difference between the parties over toilet training and use of a dummy.

4. The mother’s evidence is that the agreement she stated to Ms K was for five days not five nights.  By that she means four nights and the five days include the day on which the time commences and the day when the time concludes.  Thus, for the mother, from after school on Thursday until before school on Monday is five days.

5. Ms K was clear that the discussion was in terms of nights, not days.  She pointed to paragraph 34 in her report which commences:

   Ms Waddell said Y understands his spend time according to “sleeps” and he and Mr S’s daughter, A (aged five years) share a similar understanding of the live with/spend time arrangements.  According to Ms Waddell the girls would manage five consecutive nights spend time and she suggested Y may need a build-up in time.  She suggested Mr Waddell commence collecting the children from school each Friday afternoon (as soon as possible) and that the fortnightly time extend to include a Sunday night at the start of the 2016 school year.  Ms Waddell would be open to the children spending a Wednesday night dinner with Mr Waddell in the weekend time extending.

6. I accept that the discussion between the mother and Ms K was about nights not days.  The mother may, for some reason, now think that it was in terms of days but given the detail with which Ms K records the discussion, the reference to “sleeps”, and the reference to time extending to include a Sunday night the discussion must have been in terms of nights.

7. Paragraph 34 is not the only one with a clear reference to nights.  Paragraph 33 reads:

   Ms Waddell was positive about the children’s spend time with Mr Waddell.  She did not have any concerns for Z in the current arrangements and she said positively that he happily follows his siblings.  Ms Waddell said she was unsure how she “felt” about the children living with Mr Waddell five nights each fortnight.  According to Ms Waddell, Z can be clingy when he returns from spend time and for this reason she considered that there should be a gradual increase over two years before he stays five nights with Mr Waddell.  She was concerned five nights in each fortnight would be disruptive for Z particularly because there is not a lot of consistency between the two homes (she referred to the toilet training and dummy “issues”).

8. Ms K said that even if there has been a misunderstanding and the mother was referring to days that did not alter her recommendation.

9. Ms K regards the father positively.  She considered it was apparent he was considerate of the children’s needs and he possesses a warm and caring approach.  He identified how he caters for the children’s different needs depending on their stage of development.

10. The mother in her affidavit said she recognises that the children have developed a positive relationship with the father.  She made a similar statement to Ms K.  In her affidavits the mother says the father was controlling and abusive.  She says that since separation the father’s behaviour in contact with her has been inconsistent in particular relating to his emotional state.  She says this results in periods ranging from aggression and intimidation to sounding depressed and at other times completely withdrawn from all communication.

11. Both parties were self-represented.  The mother cross-examined the father briefly.  The father did not cross examine the mother.  To make a finding about the behaviour of the father as alleged by the mother is not possible.  There is little description of specific incidents.  Given the father has acknowledged depression including treatment when in the (employer omitted) there may well have been occasions of difficult behaviour by him towards the mother.

12. The mother says the relationship came to an end when she discovered the father was having an affair with a (employer omitted) colleague.  The father has made no reference at all to this.  The father’s partner now is the person with whom the mother says the father had had an affair.  The children get on well with his partner and so what caused the relationship to end is of little relevance other than as part of the context of the parties’ relationship.

13. Ms K’s interviews with the children, except for Z, and her observation of the children with the father are positive and consistent with the mother’s statement about a positive relationship.

14. As far as the children’s views are concerned Ms K said that W, aged eleven years two months described sharing a close relationship with both parents.  She considers the spend time is working well.  X, aged nine described the activities she enjoyed at her father’s home.  She would like more time with her father but was unable to imagine how this might occur or how it would “feel”.  Y, aged five, was suffering from a cold.  He was not able to offer a detailed narrative and knew he currently had “two sleeps” with his father.  Z, nearly three at the time, played alongside his siblings and also sought out activities independent of them.  He appeared to be at ease playing alone.

15. The relevant best interest considerations in s.60CC are the relationship considerations, the children’s wishes and the ability of each parent to provide for the needs of the child including emotional and intellectual needs.

16. The relationship issues are the first of the primary considerations, the benefit to the children of a meaningful relationship with each parent, and the second of the additional considerations, the relationship of the children with each parent and with others.

17. The mother is the children’s primary carer and they have a secure and positive relationship with their father.  They are a strong sibling group.  The particular relevance of this is that Z, three, will follow along with the others and will be secure over succeeding nights with his father when his siblings are there.  The mother is concerned that Z will not cope if the time is increased too soon.  This is relevant for the other children because the sibling group should not be separated.

18. The children have a meaningful relationship with their father and will benefit from its development by spending some additional time with him.

19. The other consideration is the ability of each parent to provide for the needs of the children including their emotional and intellectual needs.  The children are happy with each parent.  They are all developing consistently with their ages.  While there was a considerable period after separation when the children did not see their father they have now spent consistent time with him and he has demonstrated his ability to provide for their needs.

20. The first of the additional consideration is the views of the children bearing in mind their ages and stages of development.  The two older children have positive views about their father.  W did not express a wish to have more time while X did.  The younger children are too young to have any views.

Conclusion

1. Ms K’s recommendation is that the children’s relationship with their father is best promoted by increasing the time to five nights a fortnight.  They have a secure and positive relationship with the father.  The mother, the children’s principal carer throughout their lives, said to Ms K that the two girls, the older children, would cope with five nights and that eventually the younger two would.  The mother now says she was referring to five days, which would only be four nights.  Whether that is correct the expert recommendation from Ms K is five nights.  The five nights is in the best interests of the children.  Ms K’s recommendation is that increase take place over six months.  The mother’s proposal is that it occurs once Z attends school in 2018, over two years away.

2. Ms K’s recommendation is that the increase occurs in two 3 month steps.  The mother told Ms K that there were some differences in parenting styles particularly with Z and she referred to toilet training and use of a dummy.  The recommendation means that there will be six months before the five nights commences.  By that time Z will be nearly four and toilet training and use of the dummy should be in the past.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  18 February 2016