WHITTEN & WHITTEN

[2014] FCCA 1813

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITTEN & WHITTEN [2014] FCCA 1813

Catchwords:
FAMILY LAW – Parenting – whether teenage children should remain in mother’s primary care or an equal shared care arrangement – weight to be given to children’s views.

Legislation:

Family Law Act 1975, Pt. VII, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MR WHITTEN

Respondent: MS WHITTEN

File Number: DNC 103 of 2013

Judgment of: Judge Harland

Hearing dates: 21 and 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Darwin

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Mr Barry

Solicitors for the Respondent: Darwin Family Law

ORDERS BY CONSENT

1. That all previous parenting Orders be discharged and that the father forthwith do all acts and sign all documents necessary to remove the children’s names from the Airport Watchlist.

2. That the mother and father have equal shared parental responsibility for the children X, born (omitted) 2000 and Y, born (omitted) 2001 (“the children”).

3. That during school holidays the children spend time with the parties as agreed between the parties but in default of agreement as follows:

   (a)With the father in even numbered years for the first half of the gazetted Northern Territory school holiday period at the end of Term 2 and Term 4 and the whole of the holiday period at the conclusion of Term 3;

   (b)With the mother in even numbered years for the second half of the gazetted Northern Territory school holiday period at the end of Term 2 and Term 4 and the whole of the holiday period at the conclusion of Term 1;

   (c)With the father in odd numbered years for the second half of the gazetted Northern Territory school holidays at the end of Term 2 and Term 4 and the whole of the holiday period at the conclusion of Term 1;

   (d)With the mother in odd numbered years for the first half of the gazetted Northern Territory school holidays at the end of Term 2 and Term 4 and the whole of the holiday period at the conclusion of Term 3.

4. That the parent who is to commence spending time with the children at the beginning of school holidays shall commence doing so after school on the last day of that school term.

5. That time spent pursuant to Order 3 be suspended on the following special days of significance and the children spend time with the parties as follows:

   (a)With the mother from 2:30pm Christmas Eve until 2:30pm Christmas Day in even numbered years if the parties are in the same geographic location;

   (b)With the father from 2:30pm Christmas Even until 2:30pm Boxing Day in odd numbered years if the parties are in the same geographic location;

   (c)With the mother from 2:30pm on Christmas Day until 2:30pm Boxing Day in odd numbered years if the parties are in the same geographic location;

   (d)With the father from 2:30pm on Christmas Day until 2:30pm Boxing Day in even numbered years.

   (e)With the mother from 9:00am on Mother’s Day until before the school the following Monday;

   (f)With the father from 9:00am on Father’s Day until before school the following Monday;

   (g)On the children’s birthday and each parent’s birthday, should that day be a school day, the party who is not otherwise scheduled to spend time with the children may spend time with the children from 2:30pm to 6:00pm on a school day and from 12:00pm to 6:00pm on a non-school day;

   (h)With the mother from after school Thursday to 6:00pm on Easter Monday in even numbered years;

   (i)With the father from after school Thursday until 6:00pm on Easter Monday in odd numbered years.

6. That unless as otherwise agreed between the parties all changeovers take place at the children’s school during school term and on non-school days, including during school holidays, the father is to collect the children from the mother’s residence at the commencement of his time, with the mother to collect the children from the father’s residence at the commencement of the mother’s time. 

7. That the children be permitted to travel interstate and/or overseas with either of the parties during their time spent provided that the party with whom the children are to travel provides to the other party not less than 14 days’ notice and provides itineraries and contact addresses and telephone numbers for the children whilst they are away so that the children can communicate with the other party at all reasonable times.

8. That the father at all times maintain, renew at his expense and hold for safekeeping the passport for X born (omitted) 2000.

9. That the mother at all times maintain, renew at her expense and hold for safekeeping the passport for Y born (omitted) 2001.

10. That upon request and not less than seven days prior to any notified intended overseas travel of the other parent, each of the parents provide to the other parent the respective passport to enable the children to travel internationally.

11. That the parents shall each keep the other parent advised of their respective telephone numbers, being a landline number and also including a mobile telephone number and their respective residential addresses and each parent shall within 7 days of any change of either their telephone number or residential address, advise the other parent of that change.

12. That each parent be restrained from speaking negatively or denigrating the other parent to the children or in the children’s presence or hearing, or at all, including on Facebook or other social media, or allow anyone else to do so in the presence or hearing of the children.

13. That each parent must notify the other forthwith should the children suffering any serious injury, illness, medical or like emergency or accident while in their care.

14. That each parent is entitled to obtain directly from any school or health or welfare professional attended by the children copies of any reports, notices, or advice affecting the education, health or welfare of the children.

15. That each parent must include the other parent as an emergency contact for school or sport/recreation enrolments or admission for medical treatments of either or both of the children.

16. That either party are permitted to have reasonable communication with the children when they are in the other party’s care.

17. That should the mother provide the father with an appropriate device no longer than 14 days after this Order, the Father shall within 14 days of receipt of the device download on to that device all photographs of the children and the mother’s family members that the father retains digitally and return that device to the mother.

18. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND IT IS ORDERED

1. That the children live with the parties during school terms as follows:

   (a)In week one from Monday until the following Monday with the mother; and

   (b)In week two from Monday until the following Monday with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 103 of 2013

MR WHITTEN

Applicant

And

MS WHITTEN

Respondent

REASONS FOR JUDGMENT

1. X and Y’s parents cannot agree on the best parenting arrangement for them during school terms. They have reached agreement about school holidays and about equal shared parental responsibility.  It is to their credit that the parents were able to reach agreement on the issues that they did.  Order 19 is the only order not made by consent.

2. It is clear from the family report and the parties’ own evidence that the parents have very different strengths as parents and both have valuable things to offer the children. It is also clear that the parents do not communicate well with each other. There has been high conflict between them. High conflict does not have to involve yelling and verbal abuse. An indication of the level of conflict is the decision by each of the parents, exercising poor judgment, to involve the father’s adult children in the proceedings. Although they are adults they are children of the relationship having been raised by the parties since they were very small. Fortunately during the course of the hearing the parties decided not to rely on those affidavits and to not require the girls to be cross-examined.

3. The mother complains that she has offered the father more time and that he did not take it up over the past eighteen months when he could have. For part of that period the father was without his driver’s license. The father complains that the mother has not encouraged his relationship with the boys. I think the truth probably lies in between these positions. It is not necessary to rule on these matters is as the issue is what is in the boys best interests moving forward.  My impression of the father is that he would only have accepted more time on his terms. 

The parties’ proposals

1. The orders the mother sought in her case outline offered the father more time on Monday and Tuesday afternoons, subject to him giving notice and returning the children to her home by 8:45pm.  This proposal has the potential for causing more conflict and uncertainty.

2. During the hearing the mother proposed that the current arrangements largely stay in place except that the father’s time be extended from Sunday afternoon to Monday morning. Under her proposal the father would spend time with the children every second week from Thursday after school until the following Monday morning, being four nights a fortnight.

3. The father seeks a week about arrangement with the changeover day being Mondays.

The parties communication style

1. Both parties have enrolled in separate For the Kids courses which they will complete over the next six months. This is a positive. Hopefully the parties will be assisted in engaging in constructive communication with each other which they have not been able to do well to date. Both parties need to take responsibility for this. If the parents can develop a more constructive working relationship then their boys will benefit.

2. Given that the parties now agree they should have equal shared parental responsibility and either a substantially shared or equal shared care arrangement it is important for the boys’ welfare that the parents be able to communicate more constructively than they have.

3. I was somewhat concerned that the father describes the communication between them as good when clearly there are numerous examples which show that it is not good at all. The father is not solely responsible for the poor communication; my concern was more his lack of insight into the situation. What is clear from the parties’ email and text correspondence is that they have very different communication styles and there is much scope for miscommunication and misunderstanding.

4. My impression is that the mother can be somewhat anxious and also has a tendency to blurt out her thoughts in text messages without giving much consideration as to how they might be interpreted. She acknowledged this during the course of cross-examination. She also strikes me as someone who, if she does not get a response which satisfies her fairly promptly, she will send further communications.  It also strikes me that the father finds this style intrusive and has a tendency to shut down and not reply or reply in a very unhelpful way which only leads the mother to send further communications or to give up in frustration. One of the drawbacks of written communication is that the parties cannot detect tone and this can lead to the written communication being misinterpreted.  The family report writer comments on this in her report.  There are numerous examples which were highlighted during the parties’ cross-examination and it is not necessary to repeat all of them here. A few examples will illustrate the point.

5. The first time since separation the boys spent approximately three weeks with the father during the January 2014 holidays.  The mother asked the father about what he had planned for the boys.  The father probably saw it as intrusive.  She says she had provided similar information to the father. The father refused to provide information and said he did not have to as he was not taking them out of state.  It would have been more constructive for the father to have provided her with some information.  He should have been aware that she would be a little anxious as the boys had not been away from her for a three week block.

6. During the course of cross-examination the father came across as rigid and defensive. He was not forthcoming in his answers. It is also clear that the father did not understand that the orders replaced anything referred to in previous parenting plans.

7. One of the complaints the mother had was with the father’s refusal to drop the children off at (omitted) near her work rather than at her home on a day in January 2014 when she had to work. She says that (omitted) was on the way to her home so would not have caused the father inconvenience. The father’s answers about this in cross-examination were unsatisfactory. He said it would have caused him significant inconvenience but did not explain why. There needs to be flexibility on both sides.  His answers were not satisfactory.  The father in particular needs to work on this. The father’s responses to the mother’s texts about this issue was also not helpful, referring to the mother’s depression “as continuing to affect how you view things”. The only reason to say this is to provoke the mother.  It is also apparent that the father expects the mother to be flexible whilst not being flexible himself. It is also telling that when the father asked if he could collect the boys to take them for ice cream, he did not wait for the mother’s response and took them anyway. It is reflective of the somewhat entitled attitude the father has.

8. The issue about Y having left his school shoes at his father’s home is a prime example of when the mother should have picked up the telephone given the time sensitivity of the issue. She assumed that the father was deliberately not responding to her email rather than considering that perhaps he did not check his email. There was also an occurrence where Y left his schoolbooks at his father’s. These kinds of incidents will continue to occur as children typically forget items. The ineffectiveness of the parties’ communication was also evident from the correspondence about Y’s school camp to (country omitted).  In order to get to the bottom of the issue it was necessary for me to ask the father directly whether or not he was willing to pay for half the expenses for the trip on top of his regular child support payments.  He said he was.

Impressions of the parents

1. The father was unable to make concessions when he was cross-examined. He could not even say that the mother loves her mother who is very unwell. He said that he “presumes” she does. It is not surprising that the mother finds communicating with the father difficult and finds him to be inflexible. She also complains that he is controlling. I am not able to make a finding about that.  I think the issue is that the parents have very different personalities.  The mother needs to be mindful not to send multiple messages in a ‘stream of consciousness’ style and to realise that the father will not necessarily see and respond straight away.  If one of them requires an urgent response they should phone each other.  The father needs to respond in a more constructive way rather than being dismissive.

2. The father expressed concerns about the mother relocating the children to (country omitted). I do not find the father’s concerns were reasonably based. By the time of the hearing the parties resolved the issues about overseas travel and have agreed that the children should be removed from the watchlist.

3. The mother was more open in cross-examination and more willing to make concessions than the father.

Parenting styles

1. The mother is the more nurturing parent and is very attuned to the boys emotional well-being. Her household is more relaxed and less structured than the father’s household although she gave evidence that she has been putting more structured activities in place and better monitoring the boys’ computers usage.

2. The father has an authoritative parenting style. He imposes greater discipline on the boys.

3. The mother says that the father is coercive and controlling and says that the boys are frightened of him. This was not pursued by the mother’s lawyer at hearing and there is no evidence to suggest that the boys are frightened of their father. It is certainly clear that he has a more authoritarian style than the mother but that is a long way from being controlling and frightening. The mother complains that she raised a lot of issues with the family report writer which were not in the report but the report writer was not cross-examined about these.

4. One of the real sources of tension between the parents is the amount of time the boys spend on their computers and playing online games. The mother is less strict about this than the father. By her own admission the mother has difficulty effectively disciplining the boys.  She says she has put strategies in place.

5. The mother conceded that she has not done all she could have to restrict the boys’ computer time and the boys school work but has now put measures in place to address those issues. She says that earlier this year was a very difficult period of time and she was preoccupied with arranging finance in order to retain the former matrimonial home. She gave some detail about the measures that she has put in place.

6. The mother says she has felt overwhelmed and she has felt budgetary pressures with respect to organising activities for the boys.

7. The mother says both boys leave the computer on with their games running and are not always physically sitting in front of the computer. I accept her evidence that is typical of online games.

8. It is also clear from the evidence in the family report that the boys are very aware of the mother’s emotional fragility and that X in particular feels a need to support his mother emotionally. This is not because of anything the mother is doing consciously but it is something she needs to address. The mother says she thinks it is normal for children to be concerned about the parents. The concern is the extent to which the boys feel responsible for the mother’s emotional well-being. It is a burden on the children when they are still developing cognitively and emotionally. The concern was expressed by the family report writer at paragraph 120 as the children feeling obligated to lift their mother’s mood and that they are aware of their mother feeling sad when they are with their father. The mother says she did not think that the boys feel like it’s their job to look after her.

9. The report writer describes the differing parenting styles well at paragraphs 23 and 24 of her report and she also notes that the parents have different strengths.

The views of the children

1. Somewhat unusually in a case involving thirteen and fourteen year old boys the family report writer recommended that not a lot of weight should be placed on their views. Her position became clearer in cross-examination. Ordinarily with children of this age the court will place considerable weight on their views.

2. At paragraph 112 the writer stated that she was of the opinion that the boys had not developed “the cognitive maturity necessary to evaluate the merits of living with one parent, a shared arrangement or how much time with each parent.” Due to this she was of the view that their opinions should be noted but not given a great weight. She did not expand upon this in the report and her view is somewhat surprising given the boys’ ages. She did expand on this in her oral evidence.

1. What became apparent during the course of the hearing is that the boys’ behavioural issues and school performance are of such concern that this needs to be of primary focus rather than their views.

2. The family report writer refers to the children’s view at paragraphs 110 to 112 of her report. X said he wanted the status quo to remain. He said he did not want to move his things to (omitted) and he was concerned about his mother. Y initially said he wanted a week about arrangement but then expressed his dislike for catching the bus from school. He said if he was not expected to travel by bus a week about arrangement would be satisfactory.

3. The family report writer said that she found both boys to be quite young for their ages and that their focus was on the moment and that they were not able to show a perspective on long-term decisions. With respect to Y and her discussion with him about a week about arrangement she said he could not look past the issue of the bus travel and that this is an example of his immaturity. He also expressed concern about his mother being sad when they are not with her. He was concerned about this to a lesser degree than X.

4. The boys’ views were not expressed strongly in the report.  The parents gave conflicting evidence about the boys’ views.  This is not surprising as the boys are well aware of their respective positions of their parents.

5. The report writer found that the mother is less able to resist the boys using sad eye looks and circular arguments to get their own way.

6. The report writer also emphasised that the boys need consistency of regime in both households and the parents need to communicate and agree on their expectations to the children including with respect to such issues as computer time and what discipline they impose in the event the boys misbehave. She felt that the father, whose strength as a parent is his discipline and setting structures such that the boys are aware of what the consequences are for misbehaving in his household, is better suited to addressing the behavioural issues and academic performance at school.

7. She expressed some concern about the level of supervision to the boys at both houses and the time gap between the boys finishing school and being supervised.  In The mother’s case the boys are at home for about two hours on their own in the afternoons before she gets home at five o’clock. In the father’s case the boys are making their own way via at least two buses to the father’s home giving them the opportunity to hang around (omitted) shopping centre. 

Practical difficulties

1. The mother lives in (omitted) in the former matrimonial home which she retained as part of the property settlement. The father lives at (omitted). The children attend school at (omitted).  The distance is not significant when driving by car.

2. The boys are able to ride their bikes or catch a bus from school to their mother’s home. The mother drives the boys to school in the mornings. They are unsupervised for about two hours until the mother arrives home at five after work.

3. The only practical issue which arises which causes some angst is that X in particular hates travelling by public transport. In order to get to the father’s home after school if the boys are not being collected they must catch the bus to (omitted), catch another bus there to (omitted) and then take another 10 minute bus ride to the father’s home.  I have no evidence before me as to how long that entire trip takes and about the waiting time between buses. It is not surprising that the boys find this inconvenient.  The parents agree that X appears to have an aversion to the public transport and considers the bus dirty and insist on showering as soon as he gets home after being on a bus.

4. The father has just moved in with his partner. She works as a (omitted) part-time and is studying and is able to collect the boys on Mondays, Wednesdays and Fridays this semester.  Her availability will change in the future depending on her timetable.

The boys behavioural issues and performance at school

1. This is the most concerning issue. Both boys have issues which go beyond the normal teenage behaviour. Some deterioration in behaviour and performance at school may be expected after family breakdown. However it appears that the boys’ issues go beyond this and are more long-standing.  There is no sign of it improving.

2. Y was diagnosed with a sensory processing disorder several years ago.  This contributes to his behavioural problems.

3. The mother refers to the boys’ behavioural issues and their problems at school. She gives evidence that she enrolled the boys in various activities such as (omitted) and (omitted) and therapeutic programs to assist them. The mother complains that the father has not provided financial support to these activities. The father’s attitude has been that he will arrange and pay for things the children do during his time as the mother should do the same during her time. The parents are going to actually have to work together to reach agreement about what activities the children should be doing.

4. I am satisfied that both parents are in frequent contact with the school.

5. The mother says that the issues at school are not new. She says that Y has been getting in trouble for bad language and fighting for years and that his sensory processing disorder has contributed to that. She says that 2012 was a bad year, that there was improvement in 2013 but things have deteriorated again this year. She says she has spoken to several professionals.  It is not uncommon for siblings to fight and have anger issues after their parents have separated and are not communicating.  I am satisfied that the issues of the boys’ performance at school academically and their behaviour goes beyond their parents’ relationship breakdown.

6. The mother says that when the boys have been suspended from school she has denied them use of the computers and if they have caused any damage to any items she requires them to fix it or work off the cost of having the item fixed. She also gives them additional chores.

7. On 31 January 2014 the boys were fighting each other at school. Y threw a chair at X. Other children were present. Y then took off. Y was suspended for five days. X was suspended for three days.

8. On 21 March 2014 X physically assaulted another student and was suspended again, this time for seven days.

9. On 16 June 2014 Y tackled a female student. He was suspended for five days. The mother says the boys have picked up on the additional stress the mother has been under this year in trying to secure finance to keep the home. Whilst I accept that the boys would have picked up on the mother’s additional stress, this is not a complete explanation.

10. The mother says there were no incidents last year and that the boys’ academic performance was better.  This is not accurate particularly with respect to there being no incidents.

11. The school has also periodically sent letters of concern home about both boys. On 19 May 2014 X’s maths and science teacher sent a letter of concern stating that X was falling asleep during class and was complaining of being too tired to complete homework. The mother conceded that it was consistent with her having court and to getting up in the middle of the night and getting up at four am to sneak on the computer. She says she now takes a Wi-Fi device into her bedroom to prevent him from doing this.  She says it is not a new excuse for him and that she is working on it. The mother says X is not good at telling her what homework he has. She has been speaking to his teachers to try and get the information about what he should be doing. She says she anticipates being able to deal with this when she is under less stress. In answering the question as to what she would do if she was not under less stress she said that there was no resistance to the father helping the children with the school work, it was about where they were living. She said that she thought that the father would do it for a while and get bored and move onto something else.

12. X’s teacher sent a letter of concern home dated  June 2014 stating that X is not completing his classroom work and school work.

13. X was involved in an incident at school 16 May 2014.

14. X was suspended from school for two and a half days for the same incident with his brother on 31 January 2014.  Then X was also suspended for an assault for three days on 21 March 2014. There were a few incidents involving X in 2013.

15. It is clear from the boys’ school records their academic performance has worsened since 2012.  Their performance in 2012 was not strong academically.

16. The mother said she did not want the boys to go overnights to their father’s because it was not what they wanted and because the communication between them was poor. She says if the boys wanted to spend more time with their father she does not think she would have proceeded to court.

17. The mother says that there is nothing to stop the father from coming over in the afternoons in helping boys with their homework. This is unrealistic given the level of conflict between the parties.

18. The mother says that the boys are now in a routine so why change it. The father says it needs to be changed because it is not working based on the boys’ behaviour and school performance. There is merit in the father’s argument.

19. Exhibit A is a bundle of documents from the children’s school. The attendance records note the occasions when the boys have been suspended and also note when the boys have been sanctioned.  X has sanctions and suspensions in terms 1, 2 and 4 in the 2013 year. He had sanctions but no suspensions in term 3 of the 2013 year.  He had suspensions in terms 2 and 4 of 2012 and sanctions in term 3.

20. There is a recurring theme in X’s school reports of him not participating, not completing work and needing to be constantly supervised. It appears that that X is in danger of failing if he continues to underperform. He received several letters of concern in 2013 as well. It is clear that this is not a short-term issue for him. His school performance over the past two and a half years is very concerning.

21. Y’s reports in 2012 and 2013 are more positive although they deteriorated in the second half of 2013. Y is more dedicated to completing work although easily distracted. He received a letter of concern in 2013 and 2014. He received sanctions and suspensions in terms 1 and 2 of 2014. He received sanctions in each school term in 2013.

22. The boys have iPads supplied by the school. It is clear that both boys get distracted by the iPads and use of the non-school work during school time.

Family report writer

1. Ms P prepared a family report dated 13 February 2014.

2. She acknowledged that the shared arrangement will be difficult if the parents are not able to communicate appropriately and constructively about the boys but that the issue of concern is the boys’ behaviour.

3. The report writer said that she did not see any evidence of the father being physically and emotionally abusive towards the children in her interviews and that the children were very open with her and talked about both households. She did not accept the proposition that the boys were guarded and not giving her all information.

4. She also said that there was a difference between the children making a fair assessment of their parents and being immature. In their missed behaviour at school their impulsiveness is demonstrative of the immaturity and the fact that they are unable to self-regulate their emotions. These are all issues of cognitive maturity and impulse control.

Legal Principles and their application to this case

1. In cases about children under Part VII of the Family Law Act 1975 (the Act) the court must regard the best interests of the child as the paramount consideration: s.60CA.  What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1).  There are also principles that underlie these statutory objects: s.60B(2).

3. The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in s.60CC(3).  These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of  change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or any family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

5. At the core of Part VII of the Act is a presumption of equal shared parental responsibility.  Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.  This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).

6. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA.  Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2).  Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):

7. Another important concept used in s.65DAA is that of reasonable practicality.  That is explained in s.65DAA(5).

8. The parties agree that they should have equal shared parental responsibility. I am satisfied that it is in the children’s best interests that the parents share these. Both parents will need to work on this. As the family report writer notes currently the parents are parallel parenting rather than parenting cooperatively. The children will benefit if their parents can start working together and provide the boys with a consistent approach across the households particularly with respect to computer usage and school work.

9. It is clear that the children have a meaningful relationship with both their parents and this will continue. The mother did not seriously pursue her allegations of violence and emotional abuse.  I am not satisfied that there is any evidence to support the mother’s contention that the boys are scared of their father and that he is emotionally abusive. I think the father is the disciplinarian of the two parents and is stricter but that is not abusive.

10. I turn now to the relevant additional considerations.  I accept the report writer’s oral evidence about the boys’ immaturity and the consequent need to be cautious about putting too much weight on their views. It is clear that the boys are not doing well in some aspects of their lives. They can be impulsive and have trouble regulating their emotions.  Their school performance is troubling.

11. The children have close and loving relationships with both their parents.

12. There is a dispute between the parents as to the extent to which the father has taken up the opportunity to spend time with the children. The parties have very differing views on this.

13. Although the mother made some complaints about the father not paying child support on time the evidence did not support this.

14. The new arrangement will involve adjustments for the boys. It will be a significant change to their routine but there is nothing to suggest that they will not be able to adapt. They will be spending significant time with both parents. It will also give the mother the opportunity to address her distress and sadness about the breakdown of the relationship which the boys are very aware of and feel concerned about.

15. There are no issues of practicality and expense of the equal shared care arrangement apart from what I have already discussed. 

16. Both parents have showed that they have a responsible attitude towards the duties and responsibilities of parenthood. Both parents clearly want their boys to be happy and to achieve their potential.

17. Family violence is not a relevant factor here as the mother did not pursue this at the hearing and I have no evidence before me to suggest that there has been family violence.

18. The equal shared care arrangement is the least likely to lead to further proceedings. I note the family consultant’s concern that if the arrangement remains largely as it has been and the boys’ behaviour and academic performance continues to deteriorate then a further application may be necessary.

Conclusion

1. If it were not for the boys’ behavioural difficulties in school performance the court would be of the view that parents communication styles and very different parenting styles would factor against an equal shared time arrangement. The fact that the parents have very different styles is not necessarily a bad thing for the children. As the report writer noted both parents have real strengths to offer the children.

2. Something needs to change for these boys or they are in danger of failing at school. The frequency that they are unable to control their emotions and get into physical altercations of school is also very concerning.

3. Hopefully the parents will take on board the changes they need to make to see their children reach their potential.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  13 August 2014