Wicks and Wicks
[2013] FCCA 2237
•19 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WICKS & WICKS | [2013] FCCA 2237 |
| Catchwords: FAMILY LAW – Parent changing position at trial seeking some “credit” for doing so – evidence of Mother does not support parenting orders sought by her nor does it support her opposition to orders sought by Father – Father’s position supported by Family Consultant and ICL but Mother still opposed Father’s position. |
| Legislation: Family Law Act 1975 ss.60CA, 60CC(3)(a)-(m), 65DAA |
| Mazorski v Albright (2008) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR WICKS |
| Respondent: | MS WICKS |
| File Number: | CAC 1296 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 1 July 2013 |
| Date of Last Submission: | 1 July 2013 |
| Delivered at: | Canberra |
| Delivered on: | 19 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Gordon Garling Moffit |
| Counsel for the Respondent: | Mr C McKeown |
| Solicitors for the Respondent: | KP Carmody & Co |
| Solicitor/Advocate Independent Children's Lawyer: | Ms M Burgess |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
The children of the marriage namely X (born (omitted) 2001) and Y (born (omitted) 2005) (hereinafter “the children”) live with the Mother;
Both parents have equal shared parental responsibility in relation to the children;
The Mother be restrained from relocating the children’s place of residence from the (omitted) area until such time Y completes his primary schooling;
The Mother be restrained from relocating the children’s place of school from (omitted) with the child X to attend (omitted) High School at the conclusion of his primary schooling at (omitted);
The children spend time with the Father as follows:
(a)Each alternate weekend from the conclusion of school Friday to the commencement of school Wednesday;
(b)For one half of each of the end of Term 1, Term 2, Term 3 and Term 4 school holidays, being the second half in even numbered years including Christmas Day from 10am to 2pm and the first half in odd numbered years with the mother to have the children on Christmas Day from 10am until 2pm. Orders 3(i) and 3(ii) shall be suspended to facilitate holiday spend time arrangements;
(c)For not less than 2 hours on the children’s birthday with the same arrangement to apply to the mother should the children be in the father’s care on these occasions;
(d)On Father’s Day from 9am to 4pm with the same arrangement to apply to the mother for Mother’s Day should the children be in the Father’s care on this occasion;
(e)At other times that may be agreed between the parties from time to time;
Any changeovers not scheduled to take place at the children’s school shall take place at a venue as agreed between the parties;
The communication book currently being utilised between the parties continue with communications to be limited to issues that will assist the parties to effectively co-parent the children with the book to continue to be exchanged between the parties each time the children move the from the care of one parent to the other;
Telephone communication with the father and the children shall take place each and every Wednesday between 7.30pm and 8pm and on not less than one further occasion each week. Telephone communication with the mother shall take place at the same time on the Sunday of any weekend the children are in the father’s care or at any reasonable time that the children, or the parents, wish to have communication;
Neither parent shall denigrate the other parent in the presence or hearing of the children and neither parent shall cause, permit or allow another person to do so;
In the event that the children suffer any illness or injury requiring medical attention or hospitalisation while in the care of either parent then that parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the children are taken;
The parent in whose care the children are make available copies of all medical reports that may be sent to the other parent in connection with any such illness or hospitalisation of the children;
The parent in whose care the children are authorise any hospital in which the children may be admitted and/or medical practitioner under whose care the children may be to make available any such information as the other parent may request;
The mother sign all documents and do all things necessary to authorise the school at which the children may from time to time attend to furnish the father with copies of all school reports, notices and advices concerning the children and any activities the children are involved in.
Each parent advise the other parent, in writing, two weeks in advance of any change of address and/or telephone numbers.
IT IS NOTED that publication of this judgment under the pseudonym Wicks & Wicks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1296 of 2012
| MR WICKS |
Applicant
and
| MS WICKS |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
This is, in very large measure, a parenting case of exceedingly narrow compass, poorly prepared on one side and run with some needless difficulty as well. The two boys at the centre of the dispute should not have been put through such an exercise. For that matter, nor should anyone else.
The boys are now aged 12 and 8. They live in the small New South Wales country town of (omitted), which has a population of approximately 200 people.
Shortly after the conclusion of the trial, I delivered detailed oral reasons. They have now been reduced to writing, as set out below.
In the light of the amended orders sought by both parties, the essential matter that was argued for two days ultimately concerned whether the children should spend one extra day with their Father. For the reasons that follow, this should occur.
There is an unfortunate irony (and worse in terms of resources and cost) arguing for two days about one day.
A number of procedural and other preliminary matters should be noted after setting out the orders sought by the parties and the Independent Children’s Lawyer (“ICL”).
Orders Sought
The Applicant Father sought orders in the following terms:
1.That the children of the marriage namely X born (omitted) 2001 and Y born (omitted) 2005 (hereinafter “the children”) live with the mother.
2.Both parents have equal shared parental responsibility in relation to the children.
3.The children spend time with the father as follows:
a)Each alternate weekend from the conclusion of school Friday to the commencement of school on Tuesday;
b)During the non-contact week from the conclusion of school Tuesday to the commencement of school Wednesday;
c)For one half of each of the end of Term 1, Term 2, Term 3 and Term 4 school holidays, being the second half in even numbered years including Christmas Day from 10am to 2pm and the first half in odd numbered years with the mother to have the children on Christmas Day from 10am until 2pm. Orders 3(i) and 3(ii) shall be suspended to facilitate holiday spend time arrangements;
d)For not less than 2 hours on the children’s birthday with the same arrangement to apply to the mother should the children be in the father’s care on these occasions;
e)On Father’s Day from 9am to 4pm with the same arrangement to apply to the mother for Mother’s Day should the children be in the father’s care on this occasion;
f)At other times that may be agreed between the parties from time to time.
g)Any changeovers not scheduled to take place at the children’s school shall take place at a venue as agreed between the parties.
h)The communication book currently being utilised between the parties continue with communications to be limited to issues that will assist the parties to effectively co-parent the children with the book to continue to be exchanged between the parties each time the children move the from the care of one parent to the other.
4.Telephone communication with the father and the children shall take place each and every Wednesday between 7.30pm and 8pm and in the first week of the spend time routine on Friday between 7.30pm and 8pm and in the second week on Sunday between 7.30pm and 8pm. Telephone communication with the mother shall take place at the same time on the Sunday of any weekend the children are in the father’s care or at any reasonable time that the children, or the parents, wish to have communication.
5.That neither parent shall denigrate the other parent in the presence or hearing of the children and neither parent shall cause, permit or allow another person to do so.
6.In the event that the children suffer any illness or injury requiring medical attention or hospitalisation while in the care of either parent then that parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the children are taken.
7.The parent in whose care the children are make available copies of all medical reports that may be sent to the other parent in connection with any such illness or hospitalisation of the children.
8.The parent in whose care the children are authorise any hospital in which the children may be admitted and/or medical practitioner under whose care the children may be to make available any such information as the other parent may request.
9.The mother sign all documents and do all things necessary to authorise the school at which the children may from time to time attend to furnish the father with copies of all school reports, notices and advices concerning the children and any activities the children are involved in.
10.Each parent advise the other parent, in writing, 2 weeks in advance of any change of address and/or telephone numbers.
The Respondent Mother sought orders in the following terms (emphasis in original text):
1.That the children of the marriage namely X being born on (omitted) 2001 and Y being born on (omitted) 2005 live with the mother.
2.That the parents have the shared parental and financial responsibility for the major long term issues relating to the child’s education, health and religious upbringing.
3.(withdrawn at hearing)
4.(withdrawn at hearing)
5.That the children named in Order 1 herein spend time with the father as follows:
a)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday with such time to start on Thursday if the Friday is a public holiday or pupil free day and conclude on Tuesday if the Monday is a public holiday or pupil free day.
b)For one half in each of the end of Term 1 (Easter), Term 2 (July), Term 3 (September) and Term 4 (Christmas) school holidays, being the first half of the holidays in the odd numbered years and the second half of the holidays in the even numbered years HOWEVER:
(i)If the Father’s time falls in the first half of the end of Term school holidays then contact shall commence after school on the day the school term finishes and conclude at 5pm on the day calculated to be half of the holidays AND for the second half of the end of Term school holidays contact shall commence from 10am on the day calculated to represent half of the holidays and conclude at 9am on the day the school term commences.
(ii)If the Father’s time falls in the first half of the end of Term 4 (Christmas) school holidays then contact shall be suspended from 2pm Christmas Day until 2pm Boxing Day being the children’s spend time with the Mother AND if the Father’s time falls in the second half of the end of Term 4 (Christmas) school holidays then the Father shall spend time with the children from 2pm Christmas Day until 2pm Boxing Day.
(iii)That the change over venue shall be outside the (omitted) or as may otherwise be agreed.
c)Father’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday with such time to start on Thursday if the Friday is a public holiday or pupil free day and conclude on Tuesday if the Monday is a public holiday or pupil free day, and alternatively with the Mother on Mother’s Day.
d)Telephone communication with either parent at such times as the children reasonably request but otherwise between 6pm and 6.30pm on Thursday and Sunday, with each party do everything reasonably necessary to ensure that the children have privacy during telephone communication with the other party.
e)That both parties allow the children to communication by letter, email or any other electronic means with the other parent during times they are in their respective care and on such occasions as the children may request.
f)As may otherwise be agreed between the parties from time to time for the purpose of the child accompanying the parent to a special and/or significant event including but not limited to family weddings or christenings, sporting events, concerts and birthday parties. For this purpose the father may take Y to Cubs on the Tuesday of the off week with the father to collect Y after school on Tuesdays from the mother’s residence and return Y after Cubs to the mother’s residence. [Amended at hearing.]
6.That the mother forthwith purchase a book to be used for essential communication between the parties about the children’s needs, including but not limited to information about their extra curricular activities with the book to be exchanged between the parties each time the children move from the care of one parent to the other.
7.That each party shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.
8.That neither party shall telephone or text the other except about arrangements for the children within the next 48 hours or if an emergency situation arises for any or all of the children.
9.That the parties refrain from consuming alcohol to the extent that the blood alcohol level exceeds 0.05 while the children are in their care.
10.That the parents will consult with each other in good faith, child-focused and a non derogatory way either verbally, in person or in writing in the making of all long term decisions relating to the children.
11.That in the event that a child suffers any medical condition, significant health issues, illness or injury requiring medical attention or hospitalisation while in the care of either parent then that parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child is taken.
12.That the parent in whose care the child is make available copies of all medical reports that may be sent to the other parent in connection of any such illness or hospitalisation of the child.
13.That the parent in whose care the child is authorise any hospital in which the child may be admitted and/or medical practitioner under whose care the child may be to make available any such information as the other parent may request.
14.That the mother sign all documents and do all things necessary to authorise the school/s at which the children may from time to time attend to furnish the father with copies of all school reports, notices and advices concerning the children and any activities the children are involved in at the father’s expense.
15.That each party be permitted to attend all extra curricular activities engaged in by the children and all school events and activities which parents ordinarily are invited to attend.
16.That during time spent with either parent, that parent shall:
a)respect the privacy of the other parent and not question a child about the personal life of the other parent;
b)speak of the other parent respectfully; and,
c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
17.That the parties refrain from using indecent language in the presence of the children.
18.In the event that either party proposes to travel with the children more than 100km from the party’s home then, not less than seven (7) days prior notice to the intended date of travel, that party advise the other party in writing as to the flight times and dates, proposed destination, any place where it is intended that the children will stay overnight and all details necessary for the other parent to maintain telephone contact with the children.
19.That each parent advise the other parent in writing two (2) weeks in advance of any change of town and/or telephone numbers.
The Independent Children’s Lawyer proposed the following orders:
1.The parents shall have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2005.
2.The children shall live with the mother.
3.The children shall spend time with the father as follows:
a)From 7:30pm Friday to 9am Tuesday each second week
b)From after school Thursday until 9am Friday in the alternating weeks
c)For one half of each school holiday period being the first half in odd numbered years and the second half in even numbered years.
4.The children shall complete their primary schooling at (omitted) Primary School.
5.The children shall attend High School as agreed between the parents but limited to a school to which there is a bus run from (omitted).
6.Each of the parents shall ensure the children phone the other parent at least once in any 5 day block in which they are not spending time with that parent. The children are otherwise at liberty to phone either parent at any reasonable time.
7.In the event either parent wishes to relocate from (omitted) he or she shall advise the other parent as to the proposed accommodation and proposed occupants of the new location.
8.Neither parent shall relocate in a manner that requires the children to change school or restricts their ability to spend time with the other parent.
9.Changeover will be effected by the father collecting the children at the commencement of his time with them and the mother collecting the children at the commencement of her time with them.
Procedural Matters
The Family Report of Ms F, dated 11 December 2012, was admitted into evidence as Exhibit A, as were two school reports for each of the boys, X (aged 12) and Y (aged 8), which became Exhibits B1 and B2.
As already noted, both parties changed their positions shortly before the trial, perhaps most notably by the Father who altered his orders sought so that they aligned much more closely to, if not identically with, the recommendations of the report from the Family Consultant.
The ICL commented at the outset of the trial that the Mother’s case was poorly prepared, which made the assessment of orders sought much more problematic. I share the ICL’s concerns and indicated my agreement at the time. As already remarked, the case was in fact ill-prepared for the Mother.
Also, as already noted, the Mother changed her position just before the commencement of the hearing. Unfortunately and needlessly so, those acting on her behalf complained regularly throughout the trial for her having done so. As an observation, it makes no sense to complain about a position a party has adopted at trial – presumably on advice - and at the same time continue to conduct the matter on the position so adopted. Apart from anything else, it is logically inconsistent. Indeed, there was never any suggestion that the Mother was forced to change her position. Having changed it, those acting for her should not have adopted a stance of complaint that bordered on whinging throughout the trial on the basis that the Mother had changed her position and had not, it was submitted, been properly credited with having done so. “Credit” is not, per se, part of the legislative pathway found in Part VII of the Family Law Act 1975 (“the Act”). If it were more properly couched in terms of relevant parts of that pathway, there might be some relevance and the Court might then appropriately take it into account. Unfortunately, this was not the way it was argued at trial.
Having regard to the scope of the dispute and the respective positions of the parties, the matter was needlessly complicated or otherwise made more difficult (a) because (as just observed) the Mother in fact changed her position more than once in the course of the trial and (b) (also as previously observed) because her Counsel complained also more than once, about the Mother’s change in position and her need to receive some “credit” or acknowledgement for having done so. Presumably the Mother changed her position only on the basis of advice provided by her lawyers; they cannot and should not complain about conducting a matter on the basis of their client following the advice given, even in circumstances where there was more than one change in position.
There was a further difficulty, albeit a small one, during the course of the trial. As something of an aside, Counsel for the Mother acknowledged or adopted, on the one hand, the case outline filed on her behalf but on the other hand, he disavowed or disowned any responsibility for its authorship. Respectfully, this too was an untenable, or at least an unfortunate, position to adopt.
Counsel had the opportunity either to amend or substitute the case outline at any time before or during the course of the trial. He did not do so. Therefore, it is at least churlish, not to mention unhelpful, to complain about a case outline filed on behalf of one’s client, whether or not trial Counsel had any input into its formulation when there was opportunity to amend or substitute it. Further, having taken the brief, in all the circumstances, Counsel cannot complain about its preparation and the conduct of the case. True it is that Counsel must play with the hand that has been dealt; but having chosen to play or stay in the litigious game (because there is no requirement to take every brief) Counsel cannot complain about the brief taken. And as I have said, Counsel could have amended or substituted a case outline (or simply provided written submissions – or even an outline of them – as Counsel typically do) at any time in the course of the trial to remedy any perceived deficiencies. No such course was taken.
Issues in Dispute: General Comments
The Applicant Father’s case outline summarised the issues in dispute as follows:
1. Allegations of violence and abuse against the father by the mother;
2. Allegations of poor parenting as alleged by the mother against the father;
3. The amount of time the children should spend with the father;
4. The role of the paternal grandfather in assisting with morning routines.
The Respondent Mother’s case outline summarised the issues in dispute as follows:
Competing applications for residence of children.
Mother seeks that children live with her and spend time with father (6.7 Family Report).
Father works full time and not available to supervise and assist children in mornings before school or immediately after school. The father has nominated the paternal grand father to care for the children in his absence however he is aged and of ill health.
Mother is able to work during school hours and ensure she is available to supervise children before and after school.
Mother has been primary carer and parent of children since birth. Close bond and relationship between mother and each child.
Father seeks week about shared care of the children (6.7 Family Report).
Parents have very different style of parenting (4.6 Family Report).
Mother is more inclined to lay down rules and routine; ensure children are eating healthily, good sleep pattern, attend to home work; concerned about children’s safety and emotional wellbeing.
Father is more laid back; no discipline; little routine; little concern for children’s safety and emotional wellbeing; has engaged in sexual behaviours not appropriate in the presence of children; more willing to leave children in the care of others (4.7 Family Report).
Parents have not been able to communicate with each other in a reasonable manner (4.4, 4.5 Family Report). There is no agreement or similarities as to the style of parenting required to make children’s transition between households smooth.
Father commences work Monday to Friday at 5.30am in (omitted). (omitted) is approximately 40km from (omitted) or a 30 minute drive. Due to the father’s early start he is not able to provide supervision, assistance or care of children prior to school each morning. In December 2012 the father was working a second job and not finishing work until 9pm Tuesday to Thursday. The father had nominated the paternal grand father to care for the children in his absence however he currently lives in separate premises in the back yard of the former matrimonial home, is aged 70 years and of ill health.
The father has limited annual holiday leave to spend time with the boys during the school holidays and public holidays.
During relationship father had little input in children’s day to day care and supervision. Mother was the primary carer and parent (4.9, 6.1 Family Report).
The Independent Children’s Lawyer’s case outline summarised the issues in dispute as follows:
1.Parenting Ability
Mother alleges deficiencies in the father’s parenting including: lack of appropriate supervision; insensitivity to children’s needs; unavailability to supervise; exposure to sexual activity; anger issues, and physical violence.
Despite allegations, mother consistently proposes the children spend time with the father from Friday evening to Sunday evening plus half school holidays. Mother’s response seeking these orders is filed at the same time as a Notice of Child Abuse.Father denies allegations.
Father is positive about the mother’s parenting.
Mother describes an uninvolved father; father attests to high level of involvement.
2.Children’s Views
The children wish to spend more time with their father. The children are aged 11 and 8. Are their views based entirely on a concept of fairness (50/50) or should they be interpreted as a function of the children’s relationship with their father?
3.Parenting Relationship
Family Consultant recommends against equal time due to conflict between parents but also recommends an increase in the time the children spend with the father from the Friday to Sunday alternate weekends currently in place.
In some aspects the report conclusions appear to adopt the concerns of the mother in relation to supervision by the father; priorities of father; and parental involvement. To the extent that this is based on an acceptance of untested evidence, the recommendations need to be revisited. It should be noted that this was a short form report, not a full family report, investigation and reporting is therefore summary.4.Relocation
The mother and father currently live in the small township of (omitted). The children attend primary school in (omitted). The eldest child has one more year of primary school and will then need to attend High School in another town. The closest High School is 30Kms away in (omitted). There are also High Schools in (omitted) (42kms) (omitted), (53kms) and in (omitted) (50kms).
Both parents have worked in (omitted) and/or (omitted). The father continues to work in (omitted). The mother’s partner, Mr P, works as a (omitted) at (omitted). If the children move to (omitted) their time with their father will be curtailed due to the (omitted) to (omitted) distance of over 90kms.
In August 2012 the mother deposed to wanting to remain in (omitted) due to proximity of family and friends (p16). The mother now proposes to relocate to (omitted) (52 kms away) and to enrol both children at school in (omitted). No information is provided as to primary school in (omitted). Choice of school is the reason provided by the mother for a relocation to (omitted). She says her landlord placed the house she rents on the market in June or July 2012 but gives no updating information. She does not cite location of Mr P as reason to relocate. The mother provides no information as to accommodation proposals, including no information as to whether she intends to live with Mr P.
Whatever the range of matters traversed in the affidavit material and to some degree in the Family Report, in my view the central matter related to or turned very much on the views of the children reflected in the Report (pars. 5.1-5.4) and the weight that should be given to them. The boys and the older X in particular, make it plain that while they like (and obviously love) their Mother, they very much want to spend more time with their Father. Indeed the report writer recorded that “X became tearful and seemed keen to promote fairness for the parents in the arrangements for the children.”
Other significant issues related to parenting were (a) (and subject to later comment) whether or not the Mother would relocate to live with her new partner quite some distance from (omitted), and (b) which school, primarily X should attend next year, he going into high school.
Part of the Mother’s regularly expressed disquiet during the trial related to her decision to abandon her application to relocate. There seemed to be little appreciation of the need for astute attention to the consequences that flow from tactical and other decisions in litigation. Certainly, it is not clear that any responsibility was taken for such decisions here.
In any event, as I have earlier remarked, the unhelpful submission was made that some extra bonus or allowance should be attached to a party, in this instance the Mother, changing her position. Apart from pleas in mitigation in criminal proceedings, the reality in all other litigation is that there is no quid pro quo or extra bonus for a party changing his or her position. Clearly, that is not the test for making parenting orders under the Act. Pursuant to s.60CA of the Act, the Court has to make orders that are in the children’s best interests above all else. For that matter, the Father also changed his position (a) in relation to the time sought to spend with the boys, and (b) the duration on the restraint on the Mother relocating from (omitted). However, he did not seek some “extra bonus” or consideration by the Court for having done so.
All of this said, of course a party’s position at trial and changes to parenting arrangements prior to it, can be taken into account either in terms of that party’s attitude in relation to parenting responsibilities (s.60CC(3)(i)) or under s.60CC(3)(m) – “any other fact or circumstance the court thinks relevant.”
The children’s clear, unequivocal and consistent views recorded by the Family Consultant and which were confirmed also by the ICL, highlight their desire to spend more time with their Father.
The ICL essentially supported the Orders sought by the Father, not only because she regarded them to be in the children’s best interests, but also (as I have already noted) because she took a similar view to that expressed by the Court about the poorly prepared, quite unclear and regularly changing case presented by the Mother.
The Evidence of the Parties
I can be very brief in dealing with the parties’ evidence, because (a) the issues were of such narrow scope, and (b) the evidence itself was necessarily similarly limited and otherwise (except for what is noted in these reasons) quite unremarkable.
The Father gave his evidence in a straightforward and uncomplicated way. He was not moved in any part of his cross-examination regarding his evidence of his care and concern for the children, and his ability to properly to care for them.
And although questions were raised (in my view not completely fairly) about whether or not he was still in a relationship with another lady, I accept his evidence that he lives alone at home and is not in any current relationship. Such has been the case for some time.
I should be taken to accept his evidence in its entirety and to the degree that there is any difference in any account of any relevant event given by him and that given by the Mother, I should be taken to prefer and accept the evidence of the Father. In my view, he was a genuine, forthright witness who was child-centred and clearly focussed on the best interests of the boys: his evidence reflected this.
Unfortunately, just like the preparation of her case as presented in her affidavit and other material, the Mother’s evidence was most regrettably, singularly imprecise. I do not suggest that the Mother does not have the best interests of the boys at heart. However, her evidence was unconvincing and she also as it seemed to me, had a range of conflicting goals clouding her view of the children’s best interests. Among these “clouds” are her rather ill-defined then later abandoned wish to relocate and what seemed to be a not insignificant desire to frustrate the Father’s efforts to spend more time with the boys, but which had the inevitable consequence of frustrating their clear wish to spend more time with their Father.
Of very great significance, in relation to the risks or benefits of the children spending the one extra night that was formerly in dispute between the parties, in cross-examination the Mother said that she could not identify any extra risk at all other than her own preference that it not occur. In sporting parlance, in my view, this might be described as an “own goal.” In my view, this evidence from the Mother made her claims about or resistance to, the very limited extra time long-wished for by the boys untenable. Indeed, had this concession properly been made before the trial commenced, it is more likely than not that the cost and expense of it, as well as the burden on the parties and the children, could have been avoided. The concession should have been made long before the trial.
Further, the evidence she gave for resisting the Father’s application, such as allegations that the boys’ relationship with her was more confrontational, ill-tempered and generally lacking in some manners upon their return from being with their Father, when explored, in my respectful view, was also not sustainable. Indeed, somewhat reluctantly, she conceded that the boys’ ill-humour when returning home to their Mother could, at least in part, be attributed to their constant desire to spend more time with their Father but not being able to do so.
Further, the evidence from the Family Consultant (and similarly in submissions on behalf of the Father) was to the effect that it is more likely than not that with the boys being able to spend more time with their Dad and the boys being advised that the Court had accepted their strongly held views as being singularly important, any oppositional stance to their Mother will most likely lessen and probably to a significant degree. I accept this evidence from the Family Consultant and adopt the submissions on behalf of the Father in this regard.
The Legislative Pathway
The determination of parenting orders requires consideration of the legislative pathway. I set out below [3] – [6] of Brown J’s judgment in Mazorski v Albright and respectfully adopt it for its overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course, be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c):[1]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[1] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[2]
[2] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration & Resolution
Both parties seek an order for equal shared parental responsibility. That order will be made.
Such an order requires the Court to consider the terms of s.65DAA. Given that the Father no longer seeks an order for equal time, in my view, the orders he seeks satisfy the requirements for substantial and significant time. On the evidence of the parties, no issues of ‘reasonable practicability’ apply here, provided the Mother does not relocate.
In this regard, I note the comments of the High Court in MRR v GR at [13] and [15], where the Court noted that s.65DAA “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.”[3] The Court went on to observe that s.65DAA “requires a practical assessment of whether equal time parenting is feasible.”
[3] MRR v GR (2010) 240 CLR 461.
Given that a Form 4 was filed by the Mother, it is very important to note that in the light of the evidence of the Family Consultant and the evidence of both of the parties, in my view there is no risk to the children in either parent’s home. This should be taken as a formal finding of the Court in relation to both parents.
Regarding relocation, accepting that the Mother formally abandoned her proposal to relocate, the Father also changed his position on the same subject and sought a more limited restraint on the Mother with an Order that would prevent any relocation only until after the primary schooling of both children is completed at (omitted) Primary School. That order should be made.
I have already noted the children’s views as recorded in the Family Report, particularly the boys’ strong wish to spend more time with their Father (s.60CC(3)(a)). I have already recorded that, in my view, this is a decisive consideration on the facts of this case. Equally decisive, as I have noted, is the Mother’s evidence that there is nothing she can identify that would warrant the boys not spending more time with their Father.
By general reference to the legislative pathway, there is no question that the children have a good and close relationship with both parents (s.60CC(3)(b)). I also accept that the children have a good and close relationship with the paternal Grandfather, who assists the Father in the care of the children when he leaves early of a morning for work.
There are also no issues in relation to matters of “practical difficulty” that arise in relation to the children spending time with either parent (s.60CC(3)(e)).
There are no issues in relation to either parent being able to provide appropriately for the needs of the boys (s.60CC(3)(f)).
In my view, no other parts of the legislative pathway require consideration given the very limited evidence put before the Court.
Conclusion
In all of the circumstances and accepting the relatively small differences between the orders sought by the ICL and those proposed by the Father, in my view the best interests of the boys are served by the orders sought by the Father in a block arrangement of five nights with him and nine nights per fortnight with the Mother.
The orders as sought by the Father should be made. In my view, they are in the best interests of the boys according to s.60CA of the Act.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 24 December 2013
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