Willis and Field

Case

[2014] FCCA 514

20 March 2014


FEDERAL CIRCUIT COURT OF AUSTRALIA

WILLIS & FIELD [2014] FCCA 514
Catchwords:
FAMILY LAW – Whether equal time reasonably practical – whether parents able to cooperate and communicate to make equal time work – whether father or mother better able to provide for intellectual and emotional needs of children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 65DA, 65DAA

MRR v GR (2010) 240 CLR 461, [2010] HCA 4
Applicant: MR WILLIS
Respondent: MS FIELD
File Number: DGC 2942 of 2012
Judgment of: Judge Phipps
Hearing date: 5 March 2014
Date of Last Submission: 5 March 2014
Delivered at: Dandenong
Delivered on: 20 March 2014

REPRESENTATION

The Applicant: Appearing in person
The Respondent: Appearing in person
Counsel for the Independent Children's Lawyer: Ms Stavrakakis

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

  1. The mother and the father have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2012.

  2. The children live with the mother.

  3. The children spend time and communicate with the father as follows:

    (a)Each alternate weekend from 5.00pm. Friday to 9.00am. Monday commencing, commencing 21 March 2014;

    (b)From 4.00pm to 6.00pm. on Wednesday each week;

    (c)For three hours on each of the children’s birthdays and the father’s birthday at times agreed and if not agreed from 4.00pm until 7.00pm;

    (d)From 10.00am. to 5.00pm on Father’s Day if not a spend time with day;

    (e)From 3.00pm 25 December 2014 to 3.00pm 26 December 2014 and each alternate year thereafter and from 4.00pm 24 December 2015 to 3.00pm 25 December 2015 and each alternate year thereafter;

    (f)For one week of each school term holidays as agreed and if not agreed the first week;

    (g)For two non-consecutive weeks during the summer school holidays as agreed and if not agreed the weeks commencing the first and third Saturdays of January;

    (h)Otherwise as agreed.

  4. If Mother’s Day occurs when the children would otherwise be spending time with the father the children’s time with the father is suspended from 10.00am on Mother’s Day.

  5. Paragraphs 3(a) and 3(b) are suspended:

    (a)During school term holidays;

    (b)From 24 December to the last day of January during each summer holidays.

  6. For the purpose of the children’s time with the father the father shall collect the children from the mother’s home at the commencement of time and the mother shall collect the children from the father’s home at the conclusion of time.

  7. The mother and the father shall advise each other of any significant injury or illness affecting the children.

NOTATION: These orders have been amended pursuant to rule 16.05(2) of the Federal Magistrates Court Rules 2001 to reflect the deletion of the reference to Family Consultant, Ms F from paragraph’s 51 to 69 and replaced with Family Consultant, Ms S.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MORWELL

DGC 2942 of 2012

MR WILLIS

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

(As Corrected)

  1. The parties have two children X born (omitted) 2010 and Y born (omitted) 2012.  Their ages are 4 and nearly 2.  Both parties propose an order that the mother and father have equal shared parental responsibility for the children.  Nothing in the evidence suggests that this should not be the case. 

  2. At the commencement of the hearing the applicant father and the Independent Children’s Lawyer proposed that the children live for equal time with each parent, either changing each three days or on a rotating four day three day week.  The mother proposes that the children live with her and spend time with the father alternate weekends Friday night to Sunday night and for two hours on one week night.  This is her preferred proposal.  The proposal for equal time is contained under the heading “Recommendations” at the conclusion of the family report dated 25 July 2013 prepared by the psychologist and family consultant Ms S.  The report was tendered without objection.  Neither party nor counsel for the Independent Children’s Lawyer sought to cross-examine Ms S.

  3. The mother says that if her proposal is not adopted she would prefer that the children live with the husband and spend alternate weekends and some other time with her rather than there be the equal time.  This alternative proposal by her was not put until late in the hearing, towards the end of her cross examination by counsel for the Independent Children’s Lawyer, but it does not appear to have been something that she first thought of at that time.  This needs explaining and put in the context of the parties relationship in the history of the proceedings.

  4. The father was born on (omitted) 1985 and is now aged 29.  The mother was born on (omitted) 1990 and is now aged 24.  The parties commenced cohabitation in April 2008 when the mother was 17 and the father 22.  The parties separated on 12 June 2012.  The mother now lives with Mr B.  They are expecting a child and the mother is seven months pregnant.  The father has not re-partnered.

  5. The mother left the parties’ home and left the children with the father.  She says that she wished to take the children with her but the father would not permit her.

  6. The next day the mother returned to the home.  Exactly what happened is disputed but Y then went to live with his mother.  X stayed with the father.  X came into his mother’s care on 23 July 2012.

  7. The father commenced the application on 20 August 2012 in the Sale Magistrates Court applying for a recovery order.  Consent orders in the Sale Magistrates Court on 20 August 2012 provided for the children to live for equal time with each party on a three-day four-day weekly rotating basis.  The application was then transferred to this court and on 15 November 2012 a similar order was made in this court plus an order for seven consecutive nights with each parent during the 2012/2013 summer holiday period.

  8. On 18 February 2013 the orders were changed to provide for equal time week about.  In evidence the mother acknowledged that this was at her instigation.  She thought the longer periods would be less disruptive for the children.  A family report was prepared by Ms S and is dated 25 July 2013.

  9. The week about time continued until December 2013.  The father last saw the children on 8 December 2013.  The mother did not return the children to the father for their next scheduled week commencing 15 December 2013.  The mother says she did this because of what she believes were events on 16 November 2013.

  10. The mother says that on 16 November 2013 she was telephoned by her partner’s mother who said that a neighbour of the father had seen the two children out on the street and that the father had left home alone.  The father says that they were not home alone.  He was out shopping for Christmas presents. X was playing with a child of the same age who lives next door and Y was asleep.  A friend was in the house caring for the children.  Since neither party now alleges that the children are at any risk with the other party this dispute does not require resolution.  The child protection service was notified.  They interviewed the mother on 9 December 2013 and concluded that the children were not at significant risk of harm in the care of either parent and so closed the case.

  11. Both parties were represented by solicitors until the hearing on 11 November 2013.  The father’s evidence is that while he obtained a grant of legal aid to apply for a recovery order he decided to wait until the hearing in March 2014 before taking any further steps.  About this time the mother’s legal aid funding was withdrawn and while there is correspondence between solicitors negotiation to resolve what happened did not take place.

  12. Clearly the children should not have spent such a long time not seeing their father.  The father says that he attended at the changeover venue and attended at the mother’s home but did not see the children.  The mother says that she did not receive communication from the father, although she acknowledged she had changed her telephone number.  Two occasions when the father attended at her home, Christmas Day and X’s birthday she was not at home.  She said she and the children spent Christmas Day elsewhere and on his birthday X was at kindergarten and then at his birthday party.

  13. Both parties were self-represented at the hearing.  The father’s legal aid was been withdrawn in accordance with Victoria Legal Aid Commission policy of not providing funding for representation at a final hearing.  He filed a trial affidavit and a case outline.  The mother did not because her legal aid funding had been withdrawn at an earlier time.  She did not have funding for final hearing preparation.  The only affidavit she filed was sworn on 1 November 2012.  She gave some limited oral evidence.  Cross examination of each party was very limited and so that apart from affidavits the only substantial evidence from either party was the cross examination by counsel for the Independent Children’s Lawyer.

  14. In her response filed 8 November 2012 the mother’s proposal for final orders is that the children live with her and spend time with the father on alternate weekends from 6.00pm Friday to 6.00pm Sunday and from 4.00pm to 6.00pm on Wednesday each week.  She has proposals for Father’s Day the children’s birthdays and Christmas Day.  Thus, while interim orders agreed have been different, the mother has had a consistent proposal for final orders.  When interviewed by Ms S on 23 July 2013 she made the same proposal, that is alternate weekends and time during the week with the father.

  15. The mother says she consented to the interim orders not because she considered them best for the children but because that was the advice she received.  She wanted the change to week about because she thought the longer periods would be less disruptive.  She said she thought that the children needed to have a stable home and so she prefers the children should live predominantly with one of the parents rather than there be equal time.

  16. This statement by her of her preference was late in cross examination, but I am satisfied it was something she had thought through earlier.  Correspondence between the solicitors annexed to the father’s trial affidavit shows that the mothers legal aid funding was withdrawn because of issues about her partner’s financial position.  The correspondence showed that the solicitors acting for her attempting to have the legal aid funding reinstated.  Thus the mother was in a position where it was not clear that she would be unrepresented when the hearing came.  If she was represented it may well be that her position would have been put earlier, and put in an affidavit with explanation.  Her statement that she preferred the children live with one of the parents rather than equal time came while she was being cross-examined by counsel for the Independent Children’s Lawyer about her reasons for opposing equal time.

  17. The father, being the applicant, gave evidence before the mother, and so before the mother made her statement about preferred arrangements.  When invited to make final addresses neither the father nor the mother did.  I asked the father if he wanted to say anything about the mother’s alternative proposal that the children live with him rather than that the children spend equal time.  He said he would be like to do that.

  18. There are three proposals, the Independent Children’s Lawyer’s proposal for equal time, the mother’s proposal that the children live with her and spend alternate weekends and time during the week with the father and her alternative proposal that the children live with the father and spend alternate weekends and time during the week with her.  It may be that this last proposal is the father’s preferred proposal.  If it is, then equal time is his alternative proposal.

  19. In the family report Ms S, the consultant who prepared the report, sets out the following under the heading “Recommendations”:

    Shared parenting responsibilities are supported

    A split week arrangement whereby the children live with each parent for four days each alternate week is supported

    A review of the matter should occur after X presents for paediatric assessment

    Reports/input from the Maternal Child Health Nurse, the children’s kindergarten and Speech Therapist and any other relevant practitioners and services should be obtained

    Changeover should occur at a neutral location

    Mr Willis should be encouraged to share the evidence he claims reveals the mother’s partner and maternal grandmother present a risk to the children

    Both parents should actively engage with medical and childcare services

    An Addendum or Update Report may be of use prior to final determination.

  20. When the recommendations together with their qualifications are placed in the context of the whole report they do not read as a clear recommendation for a final order for the children to spend equal time with each parent.

  21. Ms S starts with a summary of the allegations each party makes against the other.  She says that both reported history of drug and alcohol use early in the relationship and each has said they have ceased drug use in recent years.  She says

    The father questioned the mother’s mental health and referred to her as addicted to drugs and alcohol and partaking in a party lifestyle, placing the children at risk of harm and neglecting their safety needs.  He has claimed Ms Field is prone to violent rages and throws things, slams doors and hits the children.” 

  22. She says that the father has suggested the maternal grandfather presents an unacceptable level of risk of harm to the children and alleges that the mother, her partner and other extended family present an element of risk.

  23. Of the mother Ms S says

    The mother has referred to the father’s extensive drug and alcohol use evidenced by him being charged for driving while under the influence of drugs in late 2011, ultimately causing him to lose his job.  She has portrayed Mr Willis as verbally abusive and controlling, limiting her freedom of movement and social connection during their relationship, resulting in her becoming estranged from friends and family.  Ms Field said the father made it difficult for her to leave the relationship with the children initially causing her to leave them behind when she moved out.  However she stressed she returned on a daily basis to care for them.

  24. Ms S refers to the claim by both parties that they had a more involved parenting role.  She then says:

    When adversarial proceedings commenced and despite their strained relationship, the parents felt obliged to implement a shared living arrangement.  Mutual mistrust and suspicion are evident and Mr Willis and Ms Field remain unable to communicate effectively or collaborate about the children.  It seems each makes unilateral decisions concerning the children when they are in their care and question the other’s appraisal of the children’s needs and interests

  25. Noteworthy is Ms S’s observation that the parents felt obliged to implement a shared living arrangement.  The mother told Ms S that the children should live primarily with her “so the children have more consistency… One home and not two homes… I’d like alternate weekends with the father”.  This statement by the mother is consistent with her evidence.

  26. The father said to Ms S that he believed the children should live primarily with him or with him and the mother in a shared care arrangement.  She quotes the father “I know she’s going for 100% custody and so I’ll go 100% but I think it’s best for 50/50”.  The fair inference from what each parent said to Ms S and Ms S’s observation that the parents “felt obliged” is that neither parent favoured equal time but compromised.

  27. In another paragraph Ms S says:

    Mr Willis and Ms Field are unable to communicate and collaborate and mistrust and suspicion are evident.  In the absence of parenting co-operation there is no confidence Mr Willis and Ms Field can jointly maintain a focus on the children’s needs and well-being. There is a heightened risk that X and Y will develop insecure attachment relationships if the current arrangements continue.

  28. Ms S did not support a week about arrangement because at their ages the children were spending too long away from each parent.  She observed that both parties are well placed to parent but they both devalue the other and their capacity and willingness to support children’s relationship with each parent she thought was unclear.  She makes this remark:

    Maybe for X and Y it is not so much about who is best placed to parent the children but who is prepared to engage with and be guided by professional support services.  Reports from the various professional services involved with the children will hopefully provide the Court with more accurate and helpful information. 

    X and Y need stability and predictability.  Until it can be determined if it is in the children’s best interests to live with one of these parents it might be prudent to revert to a split weekly living arrangement where X and Y live with their mother and father for four days one week and three days the other week.

  29. Ms S observed a close and connected relationship with each parent which she says was probably assisted by the current shared arrangement.  But in the same paragraph she says:

    If either parent is assessed as being motivated by self-interest and if their recall is deliberately inaccurate and designed to mislead the court then it would be doing the children a disservice by placing him in that parents dominant care.  In this case it is difficult to assess.

  30. Ms S then goes on to say that once the totality of the evidence is considered it might become more apparent which parent the children should live with.  She suggested an updated report after the paediatric assessment which was proposed at that stage.

  31. The recommendation for equal time is not Ms S’s recommendation for a permanent care arrange for the children.  She considers that the children living predominantly with one or other parent may be a better solution for the children, but more needed to be established.

  32. Both parties propose an order from equal shared parental responsibility and Ms S recommends it. In the parties affidavits there are allegations of past behaviour which if accepted might lead to the presumption of equal shared parental responsibility contained in s.65DA of the Family Law Act 1975 (Cth) being rebutted. Even if that is the case, the evidence shows that what the parties propose is in the children’s best interests. Despite the conflict between the parties they can reach agreement on major long-term matters, for instance kindergarten for X.

  33. Since an order for equal shared parental responsibility will be made, I must follow the requirements of s.65DAA, that is consider whether it is in the best interests of the children and reasonably practicable for there to be equal time, and if not equal time, substantial and significant time. I must consider both requirements, the best interests requirements and the requirement of reasonable practicability. The High Court makes this clear in MRR v GR (2010) 240 CLR 461, [2010] HCA 4.

  34. The reasonably practicable considerations that the court must have regard to are in s.65DAA(5). They are:

    How far apart the parents live from each other; and

    the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    The parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    The impact that an arrangement of that kind would have on the child; and

    Such other matters as the court considers relevant.

  1. The father lives in (omitted) and the mother in (omitted), about a 15 minute drive.  They live close enough together to implement an equal time arrangement.

  2. The parents are hostile to each other.  What they say about each other in their affidavits shows this.  Ms S reaches the same conclusion.  One of the extracts from her report set out above is her conclusion that mutual mistrust and suspicion are evident and the parents remain unable to communicate effectively or to collaborate about the children.  Ms S says it seems that each makes unilateral decisions concerning the children when they are in their care and question the other’s appraisal of the children’s needs and interests.

  3. Recent events illustrate the mistrust.  The mother has withheld the children from the father since December.  The reason is that she believes that he left the children without supervision and that they went out on the roadway.  It illustrates the mother’s distrust of the father and the inability of the parties to discuss the problem and solve it.  The father’s evidence is that he was shopping for Christmas presents for the children and he left a friend looking after them.  He obtained a letter from the friend which is annexed to his affidavit.  The letter is not an affidavit itself and the writer was not called to give evidence and was not available for cross examination.  However, if it was correct that a friend was minding the children, if the parties had an ability to communicate the father could have explained this to the mother and hopefully the problem would have been solved.

  4. X has behavioural and development difficulties and has seen a number of professionals including a paediatrician and an occupational therapist.  Ms S says that the mother engaged with a range of services and that it seemed that the father was slow to engage with child related services identified by the mother.

  5. The father and his family have taken X to speech therapy lessons but he says in his recent affidavit that he was not aware of a report by Ms M occupational therapist dated September 2013 until he attended Dr E’s rooms on 11 February 2014.  Dr E is the consultant paediatrician who has seen X.  Dr E saw X on 14 April 2013, 16 July 2013 22 October 2013 and 11 February 2014.  The father says the mother did not inform him of the appointments, and that may be correct.  On the other hand, the father must have been aware of the need for a paediatric assessment if only because Ms S said in her report that a paediatric assessment of X was essential.

  6. Ms S says the children need stability and predictability in their lives and home environment and refers to the problems inconsistent care may cause.  The parties do not have the capacity currently and are unlikely in the future to have the capacity to provide the stability predictability and consistent care needed if the children are living equal time with each parent

  7. The events described above show that the parents do not have a current capacity and are unlikely to have a future capacity to communicate with each other and solve difficulties that might arise in implementing an arrangement of equal time.  While they have been able to agree on which kindergarten and child-care the children should attend what is said above illustrates their inability to communicate about significant matters.

  8. The evidence relevant to the second and third of the reasonably practicable considerations and the conclusions to be drawn from it show that the requirements of these considerations are not met.

  9. This is not conclusive of the question of whether equal time is reasonably practicable.  Equal time with each parent had been in place for about 11 months when Ms S saw the parties and the children and she observed well cared for children moving readily between their parents with confidence and assurance.  She assessed them as having a close and connected relationship with each parent.  But while this was the case after 11 months, Ms S’s misgivings about what might happen if it continued have already been referred to.

  10. The conclusion I draw from the consideration of the reasonably practicable considerations is that the ability of the parties to implement the arrangement and to communicate to resolve difficulties is so poor that equal time is not reasonably practicable.

  11. The High Court in MRR v GR makes it clear that having determined that equal time is not reasonably practicable I must consider whether substantial and significant time is practicable.  The same considerations apply.  Again considering what I have found about the second and third of the reasonably practicable considerations arrangement time which requires a substantial degree of cooperation and communication between the parents is not reasonably practicable.  The arrangement which is reasonably practicable is one which requires a minimum of cooperation and communication between the parties.  That can only be one where the care of the children is principally with one party so that the only cooperation and communication necessary is delivery and collection of the child when spending time with a parent and communication of simple information such as notification of a minor illness.

  12. Best interests considerations are contained in s.60CC. The first of the primary considerations is the benefit to the children of a meaningful relationship with each parent. The history of the care of the children and Ms S’s observations in the family report show that the children have a good relationship with each parent. Ms S observed well cared for children confident and assured with each parent.

  13. The second of the primary considerations is the need to protect the children from harm and the risk of harm.  Both parents acknowledge drug use and abuse of alcohol in the past.  Both now say that has stopped.  I accept that that is the case.  The father says the mother smokes in the presence of the children.  The mother denies that is the case, says she now only smokes perhaps twice a day and always does that outside and away from the children.

  14. The mother’s allegation that the father left the children alone on 16 November 2013 is based on double hearsay.  The father seems unlikely to leave the children unsupervised.  There is no plausible evidence that he did

  15. Each party alleges a lack of proper care of the children by the other.  The children present well cared for.  The allegations are a manifestation of each party’s poor opinion of the other.

  16. The first of the additional considerations is the wishes of the children.  The children are too young to express any wishes.

  17. The next additional consideration is the children’s relationship with each parent and other parties.  Each claims that they were the primary carer prior to separation.  The father worked until he lost his licence for driving while drug affected.  The mother worked at (omitted) from six a.m. to midday.  Thus, each party played a significant role in caring for the children prior to separation and since then the care has been shared until early December 2012.  Ms S observed a secure attachment of each parent.  Extended family on both sides have a significant role in the children’s lives.

  18. Next is the extent to which each of the child’s parents has taken the opportunity to participate in making decisions about major long-term issues, spend time with the child and communicate with the child.  The history shows that both have done this.

  19. Next is the extent to which each of the child’s parents has fulfilled the obligation to maintain the child.  Both parents have done this.

  20. Next is the practical difficulty and expense of a child spending time and communicating with a parent.  The parents live about a 15 minute drive apart.  Practical difficulty and expense are minimal.

  21. Next is the capacity of each of the child’s parents and any other person including grandparents to provide for the needs of the child including emotional and intellectual needs.

  22. The family report identified the need for a paediatric assessment of X.  X had been referred by his general practitioner Dr C of (omitted) Medical Centre.  Dr E saw X on 14 April 2013, 16 July 2013 and 22 October 2013 and he was discussed at the care coordination meeting held at the (omitted) Health Service hospital premises in April 2013 and May 2013.  The meeting involved the doctor’s paediatric colleagues and allied medical staff.  The mother took him to each of the appointments.

  23. The father was unaware of the extensive paediatric assessment of X until February 2014.  X saw an occupational therapist as part of this process but the father was not aware of this until he saw Dr E on 11 February 2014.  He knew of the need to speech therapy and had taken X to appointments.

  24. The father says that the mother did not tell him of the appointments with Dr E and that was why he was not present.  That is undoubtedly correct, but Ms S observed the father acknowledged the possibility of X being identified as having developmental delay but was unconvinced.  Ms S says that the mother described her appraisal of X’s compromised development with confidence and sensitivity.  The mother identified a range of services she had engaged to assist X including a paediatrician, speech therapy and Child First.  The mother said that the father was reluctant to accept hers and professional advice.

  25. Ms B spoke to Ms L, Case Manager (omitted) Family Services – (omitted).  She described the mother’s involvement with the children and the service.  Ms S said Ms L offered a supportive and positive appraisal of the mother.  The father is not mentioned as having any involvement.

  26. Dr E’s report says that X fits the bill for a ADHD boy and he has traits on the Autism Spectrum.  The report says he has improved with friendship and play and is not as obsessed with his toys as he used to be.  Dr E’s says that the service needs to watch X carefully and keep him in the early intervention group as well as speech pathology in term two.  The acceptance by the mother of X’s need for assessment and intervention has had a beneficial result for X.

  27. In the family report of 3 June 2013, Ms S says that “X is about to undergo a paediatric assessment for a range of identified developmental concerns.  Ms Field has been proactive, whereas Mr Willis has been slow to engage”.  Ms S says that X needs parents who are prepared to engage with and be guided by the recommendations of external agencies.  Thus, while the father said he was not told of the paediatric appointments, he must have known that they were about to occur and yet he has not taken steps to be involved.  In June 2013 both parties had solicitors acting for them and that gave the father an avenue for asking for dates of paediatric appointments.  It was not done.

  28. Ms S says that maybe for the children it is not so much about who is best placed to parent the children but who is prepared to engage with and be guided by professional support services.  The mother is the one who has engaged with the professional services and has accepted their guidance.  The father complains that the mother did not tell him of appointments and she should have, but she was the one who did engage with the professionals which has resulted in the assessment and treatment and assistance which has led to the improvement that Dr E noted in February.

  29. Both parents have shown the capacity to provide for the children’s day-to-day needs and Ms S assesses both of them as good parents.  The history of the mother’s engagement with professional services shows that she is the one who was better attuned to X’s problems and prepared to seek the help needed.

  30. The other relevant consideration is the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.  The mother did not deliver the children to the father in December and he has not seen them since.  Perhaps she had good grounds for doing this immediately after she was given information about the children being left unattended, but not after she had received advice from Child Protection Officers that they did not consider the child was at risk with either parent.  She should not have kept the children away from the father.

  31. Perhaps she was influenced by her belief that the equal time arrangement was not working for the children, but that is not a reason for not allowing the children to see their father for many weeks.  It shows a lack of attention to her responsibility to make sure the children have their relationship with both parents and must be taken into account.

  32. The extracts from Ms S’s report I have referred to show the qualifications she puts around her recommendation for equal time.  A fair reading of her report is that she says that if one parent is better attuned to the children’s needs and can be assessed as better able to cater for the children needs beyond the ordinary requirements of day-to-day care then that parent should be the principal carer.  The mother has shown that she is better attuned to the children’s needs and has demonstrated it with her attention to ensuring that X has the assessment and intervention that he needs.  She has followed advice and has done the work of engaging with the various professionals and services.

  33. One matter which shows that the mother is focused on the children’s needs is her position that it is better for the children to live principally with one parent rather than that there be equal time.  She would rather the children were living with the father rather than they have equal time.  I am satisfied that this was a position she had thought through and the conclusion I have reached is that her position is correct.  It is a further indication that she is better placed to care, particularly for the emotional and psychological needs of the children.

  34. I am satisfied that the children’s best interests are met by living with the mother.

  35. The only proposal I have for time with the father is the mothers for alternate weekends.  Her response put the times as 6.00pm Friday to 6.00pm Sunday.  She proposes from 4.00pm to 6.00pm. on Wednesday each week and then provision for celebratory occasions.  Given the father’s extensive involvement with the children extension of the alternate weekend time to Monday morning would not be disruptive.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 20 March 2014

Areas of Law

  • Family Law

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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MRR v GR [2010] HCA 4
Sayer v Radcliffe [2012] FamCAFC 209
Sayer v Radcliffe [2012] FamCAFC 209