Wilson and Allan - [2007] FMCAfam 598

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILSON & ALLAN

[2007] FMCAfam 598

FAMILY LAW – Interim arrangements for children aged 5 and 2 – presumption of equal shared parental responsibility – equal time or substantial and significant time.

Family Law Act1975, ss.61DA; 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MR WILSON

Respondent:

MS ALLAN

File number:

ADC 3210 of 2007

Judgment of:

Brown FM

Hearing date:

24 July 2007

Date of last submission:

24 July 2007

Delivered at:

Adelaide

Delivered on:

24 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Kyrimis

Solicitors for the Applicant:

Kyrimis Lawyers Pty Ltd

Counsel for the Respondent:

Ms K. Annells

Solicitors for the Respondent:

Herman Bersee

ORDERS

The parties have equal shared parental responsibility for the children of the marriage M born in April 2002 and B born in December 2004.
The said children live with the each of the parties as follows;
(a)With the father during term times from 3:30pm or after school has concluded on each Thursday until 9:00am the following Sunday;
(b)With the father during each short South Australian school holiday period from 3:30pm or after school has concluded on the Thursday immediately prior to the commencement of such school holiday period for a period of nine (9) days (ie. until 3:30pm on the Saturday in the middle of such school holiday period);
(c)With the father during each long South Australian school holiday period for a total of three (3) weeks on a week about basis on dates and at times to be agreed between the parties, or in default of agreement as ordered by the Court;
(d)With the mother at all other times.
The following special arrangements apply in relation to Christmas Days and the birthdays of the parents and the children;
(a)With respect to Christmas Day;
(i)In 2007 and each alternate year thereafter, the children will spend time with the father from 6:00pm on Christmas Eve until 2:00pm on Christmas Day and then the children shall spend time with the mother from 2:00pm on Christmas Day until 9:00am on Boxing Day;
(ii)In 2008 and each alternate year thereafter, the children will spend time with the mother from 6:00pm on Christmas Eve until 2:00pm on Christmas Day and then the children shall spend time with the father from 2:00pm on Christmas Day until 9:00am on Boxing Day.
(b)If a birthday of one of the parents falls at a time when the children are living with the other parent, then on that birthday the children shall spend time with the parent whose birthday it is at times to be agreed between the parties, or in default of agreement as ordered by the Court as follows;
(i)If the birthday falls on a school day then for a period of at least two (2) hours;
(ii)If the birthday falls on a day that is not a school day then for a period of at least four (4) hours.
(c)Upon each of the children’s birthdays, both children shall spend time with the parent with whom they are not then living at times to be agreed between the parties, or in default of agreement as ordered by the Court as follows;
(i)If the child’s birthday is on a school day then for a period of at least two (2) hours;
(ii)If the child’s birthday is not on a school day then for a period of at least three (3) hours.
The children be exchanged between the parties at a location to be agreed between the parties and failing agreement at the premises of the Childrens Contact Service at A Children's Contact Service and if that facility is not open outside the Mxxx Primary School provided the parties do not come within five (5) metres of one another or each others motor vehicle.
The father do have telephone communication with the children on a landline telephone once per week for at least ten (10) minutes at 6:00pm each Tuesday and the mother do make the children available for such uninterrupted communication.
The mother do have telephone communication with the children on a landline telephone once per week for at least ten (10) minutes at 6:00pm each Friday and the father do make the children available for such uninterrupted communication.
Neither party denigrate the other in the presence or hearing of the said children or permit any other person to denigrate the other party in the presence or hearing of the said children.
The parties exchange address and telephone contact details within two (2) days of today and within two (2) days of any change of such details.
The father is to ensure that the child M is delivered to and collected from his school during times he is in his father’s care by private motor vehicle driven by himself or his nominee.
The parties attend a family dispute resolution conference at Centacare, Gxxx to discuss the care, welfare and development of the said children in an endeavour to resolve any differences between the parties in relation thereto.
This matter be listed for final hearing on 19 October 2007 at 10.00am before Federal Magistrate Lindsay in Gxxx NOTING 1 days hearing time has been allocated and will not be exceeded without leave of the Court.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 21 September 2007.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3210 of 2007

MR WILSON

Applicant

And

MS ALLAN

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally immediately following the interim hearing. A transcript has been prepared. Grammatical errors have been corrected and an attempt made to render the orally delivered reasons amendable to being read.
Today I have to deal with an application which is brought by Mr Wilson. The respondent to the application is Ms Allan. The proceedings concern interim arrangements for the care of two children. The children are M, who was born in August 2002, and B, who was born in December 2004. Mr Wilson is M and B's father and Ms Allan is M and B's mother.
The proceedings before me have taken place in the following manner: Mr Wilson and his solicitor Mr Kyrimis are in Mr Kyrimis's office in Gxxx and Ms Allan and her solicitor Ms Annells are in Ms Annells' office also in Gxxx. I am in the court in Adelaide.
For reasons of convenience, the parties and their solicitors have appeared before the court via a telephone line. That is obviously the cheapest way for everybody to attend at court today. However, I appreciate that it is difficult for the parties concerned not to be able to see me and too some extent it is alienating for this important decision regarding the two children to be made in this artificial way.
As I say, the proceedings concern interim arrangements for the care of the two children. The father commenced these proceedings on 12 June 2007. On an interim basis, he seeks orders that would see the children living with him, during school terms, from 3.30 pm on Thursday afternoon or thereabouts until 9 am the following Sunday and for roughly half of each school holiday period.
At other times he proposes that the children should live with the mother. He also has proposals in respect of the children spending time with both their parents on special occasions such as at Christmas, on their birthdays and on the parties' birthdays. He also has some proposals for the children to be able to talk on the telephone with both him and their mother from time to time.
I think it is common ground between the parties that, at the present time, they do not have an easy relationship with one another. The father also has some proposals as to how the children will be exchanged between the parties, as will be required by the orders, which he proposes.
In support of his application the father relies on two affidavits which he has sworn. The first one was filed in support of his application on 12 June 2007; that is a fairly brief document. More recently, in response to an affidavit filed by the mother, he has filed a more lengthy affidavit, which he did on 23 July 2007.
The mother responded to this application on 18 July 2007. She has filed an affidavit in support of her position concurrently with her application. She proposes that the two children concerned should live predominantly with her and that the father should spend time with the children on alternate weekends, from 4 pm Friday till 5 pm the following Sunday or 5 pm on the following Monday if that Monday is a public holiday. She also has proposals, which would see the father spending time with the children for half of each school holiday, provided that the father is not working at the time. She has other proposals in respect of special occasions such as Christmas Day, birthdays and also Father's Day.
It is I think her position that the parties should primarily exchange the children concerned at a contact centre, particularly the A Children's Contact Service, which is in Gxxx. She also has some proposals in regard to the father being able to telephone the children once a week. The issue of telephone communication does not seem to have been greatly contentious between the parties, certainly not in these proceedings.
These are interim proceedings, as I say. What that means is that the orders I make today will stand until there can be a final hearing of the parties' competing applications. I have already indicated my appreciation of how difficult the process is for the parties to take part in via the telephone. The parties, of course, will be aware that neither of them has gone into the witness box; neither of them has been cross‑examined by the lawyer for the other party. The only evidence before me is in the form of the affidavits to which I have referred.
Clearly, at this stage, it is impossible for me to form an appreciation of what sort of people each of the parties are, and, perhaps more importantly, in the context of disputed factual situations - and there are many disputed factual situations between the parties - it is impossible for me, just from reading affidavits, to form a view as to which of the parties is likely to be truthful about what has occurred in the past. However, having said that, I have no reason to think anything other than that both the father and the mother are loving parents, who are deeply concerned about the best outcome, from these proceedings, for both M and B.
It is also not an uncommon phenomenon for people, particularly where there is a high level of conflict between them, to have very different views about what has happened in the past between them and it does not necessarily follow from that that one of them is truthful and the other is not. Unfortunately, in proceedings such as this, hostility between the parties very often distorts people's recollections of what has occurred in the past.
Before I come to the factual background of this matter, it is necessary for me to briefly outline the legal framework which I have to apply to determine the matter. The law, which I must apply, is set out in Part VII of the Family Law Act. That is the part of the Family Law Act which deals with arrangements for the care of children after parties have ended their relationship with one another. As the parties may be aware, that part of the act has recently been significantly amended by the provisions of an act of parliament called the Family Law Amendment (Shared Parental Responsibility) Act 2006. This amending provision came into force on 1 July 2006.
The legal consequences of the amendment have been discussed and guidance provided for a court such as this one in applying the law in a recent case of the Full Court called Goode & Goode[1]. The Full Court, in that case, said that the amendment was intended to favour the substantial involvement of both a child's parents in their child's life in respect of both parental responsibility and the time the child concerned spent with each of his or her parents subject, however, to the need to protect the child from harm, abuse and family violence and also provided that such an arrangement was in the child's best interests and was reasonably practicable.
[1] Goode & Goode (2006) FLC93-286
There is no distinction in how the law is to be applied at the interim stage as opposed to the final stage. In this case there are very many issues of fact between the parties which I cannot resolve today. I am, however, going to allocate a time for the final hearing of the matter, in Gxxx, later today. So the orders I am going to make today will be in place for about three or four months at this later stage, there can be a full examination of all the issues in dispute between the parties.
By way of background, the parties were married at Lxxx, which is near to Gxxx, in October 1999. There seems to be no dispute between them that they finally separated some time around September of 2006.
This is the first time that either of the parties has sought to come to court to formalise arrangements in respect of the care of the two children concerned. The parties have different views as to what arrangements have been made for the care of the two boys, since they separated.
From the father's perspective, after the parties separated, he spent a lot of time with the children on most weekends, from Friday to Sunday, and, he also says, during the day on Mondays and Thursdays whilst the mother was working. It is his position that, over time, his relationship with the mother has deteriorated and, as a result, she has unilaterally reduced the amount of time he has been able to spend with the two children concerned.
The mother disputes that the father has spent as extensive periods of time with the children as he contends. It is her position that, from time to time, the father has been willing to put his recreational interests before spending time with the two boys.
Relations between the parties seem to have worsened over time. One of the factors which has led to the souring of relations between the parties appears to be financial in nature. The end of the parties' marriage has precipitated a financial crisis and resulted in the sale of the former family home as a result of a mortgagee's foreclosure. Now the father is in bankruptcy.
As a result of accommodation issues the father has, he has left the former matrimonial home and moved to live at his parents' home in Lxxx. As I understand it, that is a rural area about 24 or 25 kilometres north-west of Gxxx, I am told, and I have no reason to think anything other than it is about a 15 to 20‑minute drive from Gxxx.
It also seems to be the case that the father has re-partnered since the parties separated. The father, as I understand matters, is a driver. He is engaged in full-time employment and says that he has some flexibility in his employment, particularly on Fridays. The mother is concerned that the father does not have as much flexibility, in regards to his work, as he contends in these proceedings.
The mother is a service assistant; she works at a supermarket in Gxxx. She is part-time in her employment. She works three days per week starting around 9.00 in the morning and going until 2.30 pm. She has some work on Saturdays once a fortnight. It is her position, I think, that she has tailored her work commitments in regards to arrangements for the care of the two children concerned. M obviously is going to school now and from time to time the mother has utilised childcare in respect of B.
The mother is concerned about the father's proposals, particularly the 9 am Sunday morning return, because she believes that will be unnecessarily restrictive and will result in her and the father not having a full weekend with either of the children. She prefers and believes it is likely to be more accommodating for the children's needs, if they can spend weekends with each of their parents.
From the father's perspective, the appeal of his proposal is that the children will spend three evenings with him each week and four evenings each week with the mother. He contends this is perhaps not perfect but close to the optimal outcome as envisaged by the legislation to which I have already referred.
The mother in her affidavit has some significant criticisms of the father. It is her position that she is not disinclined to the children having a relationship with their father but she says that the reason the parties have not been able to reach agreement is that the father has been verbally and physically abusive towards her on occasions, when the two boys have been exchanged between the parties. She says that there has been, as I say, verbal abuse but on another occasion the father has tried to slam a car door on her and pushed her whilst the younger child was in her arms. She also alleges that on another occasion the father's mother drove a car over her foot.
As a result of those matters, she went to the police and on 5 June, I think it was, this year, she applied for a domestic violence order against the father. I have a copy of that order, which indicates that the application was heard in the father's absence. I am told, today, that the father wishes to contest the application and particularly whether there are proper grounds for it to have been made. His application is apparently proceeding through the Magistrates Court at Gxxx to a final hearing.
In his most recent affidavit, the father denies ever being verbally or physically abusive towards the mother. He denies trying to slam a car door on the mother and essentially asserts that the mother has been provocative towards him and members of his family and has tried to precipitate some violent altercation from him. It is his position that he has withdrawn, wherever possible, from such situations and indeed he says that he himself has been struck by the mother. He also has had to go to the police to safeguard his interests.
The parties are diametrically opposed in regard to the nature of their relationship with one another. At this juncture, although for reasons I will come to in a moment the issue of family violence is relevant to the outcome of these proceedings, I am not in a position to resolve definitively, one way or the other, whether the father's account is likely to be the correct one or whether the mother's account is likely to be the correct one, or indeed whether both parties have behaved inappropriately at times and have both responded to the emotion of the situation.
That is not the end to the issues in dispute between the parties. The mother has some criticisms of the father, particularly where he is living at the moment. She asserts that the premises where he lives are not suitable for children of the ages of these two children, particularly that they do not have a bath. More importantly, I think, that there is a business operated from the premises, which is unsafe for children of the ages of M and B.
The mother is also concerned that the father's father has impaired sight and this may be dangerous for the children when this gentleman is driving a forklift in that he may not see one or other of the children. The mother is also concerned about M getting to and from school, from Lxxx. She is particularly concerned about M, being on the school bus with older children, at his tender years. In contrast, she speaks positively of her own premises, in her affidavit material, and deposes to a pleasant and suitable home for the two children concerned.
As perhaps might be expected, the father denies that his home is unsuitable for the children and it is his submission that the mother has exaggerated her concerns for her own ulterior motives. In terms of M going to school on the bus, he says that if that does occur it will be only in extreme situations and he is prepared to abide by an order that it not occur.

Finally, the mother has raised issues as to how the children are currently coping with the separation between their parents and what clearly is not an easy relationship between their parents at the present time. It is her position that M, in particular, is not travelling particularly well. She asserts that the father has no proper insight or understanding of M's emotional needs.
The father does not accept that. He says he has spoken to M's school counsellor and that any concerns the school has about M's behaviour are not extraordinary ones. He has provided a copy of M's most recent school report which does not appear to be an unusual one for a child of M's age. That is the background to this matter.
It is now necessary for me to turn in more detail to the significant changes to the law to which I have referred, which, as I say, evince a legislative intent that both a child's parents are to be involved in their child's life and care. As a result of that intention, the legislature has created a starting point for any court before it makes a parenting order in respect of any child. A parenting order is what it says: an order delineating responsibility for a child between a child's parents.
Before making any parenting order, the court is required to apply a presumption. The presumption is set out in section 61DA of the Family Law Act. Pursuant to that section, it is to be presumed that it is in the best interests of the child concerned for the child's parents to have equal shared parental responsibility for that child. This case is noteworthy because at this point there does not seem to be any great dispute between the parties, on the face of their respective applications, that they should have equal shared parental responsibility for both M and B.
The mother, as I say, has raised issues to do with Family Violence. Pursuant to subsection (2) of section 61DA, the presumption is rebutted if there are reasonable grounds to believe that child abuse or family violence has occurred. In this case the issue about family violence is hotly contested between the parties. I note that the family violence order, which was made on 5 June, did not occur after a contested hearing between the parties. As I have indicated, there is to be a further hearing about the matter.
Given all the circumstances of this matter, and particularly that neither party seeks to rebut the presumption in a formal sense, I think I have to be careful about not applying the presumption at this stage. The presumption is also rebutted by the provisions of section 61DA(4), on the basis that, the presumption should not apply if the court is satisfied that it would not be in the best interests of the child or children concerned. Although the mother does not say it as such, it seems to be her position overall that, for a number of reasons, it would not be in the child's best interests for the presumption to be applied.
In addition, pursuant to subsection (3) of section 61DA, the presumption is not to be applied at the interim stage, if the court is of the view that it would not be appropriate for it to be applied. In Goode, the Full Court indicated that the discretion provided by subsection (3) was not to be exercised in a broad, exclusionary manner.
I think it is of note that, at this juncture, the mother does not seek, formally, that the presumption should not apply. Although, as I say, it seems to be the flavour of her case that the court should be very careful about what follows from the application of the presumption.
The presumption itself does not determine the amount of time a child is to spend with one or other of his parents. That issue is determined by section 65DAA of the act. If the presumption is to be applied, the court is required to consider, firstly, a child spending either equal periods of time with both parents provided that such an arrangement is likely to be in the best interests of the child and is also reasonably practicable; and then, secondly, if equal time is felt not to be appropriate the court has to consider the child spending substantial and significant time with both parents, again subject to considerations of best interests and practicality.
Substantial and significant time is defined in the act. It includes time that falls on days on weekends and holidays and days that do not fall on weekends and holidays. More importantly, the thrust of the definition is that it is time that allows a child to spend with a parent that allows the parent to be involved in the child's daily routine and occasions and events that are of particular significance to the child concerned. Again, that seems to come back to the intention of the legislature that, wherever possible, both a child's parents should be substantially involved in their child's life.
In this, as in all matters to do with children, I have to be satisfied that whatever order the court makes will be in the child's best interests. In determining what outcome is likely to best serve a child's interests, I have to consider a whole list of matters that are set out in section 60CC of the Family Law Act. There are two types of considerations: firstly those entitled primary considerations and then those entitled additional considerations.
The primary considerations are twofold. Firstly, I have to consider the benefit of the child concerned having a meaningful relationship with both his or her parents. Again, this seems to pick up one of the themes of the amending legislation that children, as far as possible, should be able to interact with their parents as often and in a variety of circumstances as is possible. The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This seems to be one of the major themes of the mother's case. As I have said, she categorises the father as a violent and abusive person, something which the father vehemently denies. However, it is I think again telling that the mother has not sought, formally, to rebut the presumption arising from section 61DA.
I will not go through all the other additional considerations in any great detail. At this point I do not know what M's and B's views are about the arrangements which are proposed, but both boys are quite young and I would not expect them to have any great deal of insight into these issues at this stage of their development.
In terms of the nature of the relationship each of the children has with their parents and other significant relatives, it is I think clear to me that both boys have a very significant relationship with both their parents. This is not a case, as I say, where the mother wants to restrict the father seeing the children to daytime periods: She concedes, I think, that the relationship between the two boys and their father is significant. It also seems to be the case that there are others, particularly paternal and maternal grandparents, who are willing and wanting to play a role in the lives of these two boys. It seems clear to me that both B and M are much-loved children.
I have to consider the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and their other parent. By implication, I think the father is critical of the mother in this regard and asserts that she, from time to time, is putting her emotional needs before those of the children concerned. In this regard, as I have already observed, I note that the emotional topography between the parties is still quite difficult.
I have to consider the practical difficulties and expense of the children spending time with both their parents. The mother, in her case, points to the distance between Lxxx and where she lives in Gxxx. However, as Mr Kyrimis point out, a drive of 15 to 20 minutes through uncrowded rural roads would not be considered onerous when compared to what separated parents do, in the driving department, in Sydney and other large metropolitan centres, where it is a common occurrence for parties to have to travel across metropolitan areas in very heavy traffic to exchange children. In this case I do not think there are any real practical impediments to B and M spending extended periods of time with both their parents.
I have to consider the responsibilities and insight both parties have shown in regard to being parents, and at this point there is considerable dispute about that. However, regardless of the mother's criticisms of the father, she is still prepared to concede that the children should spend extended periods of time with their father. To my mind, that significantly lessens the strength of the criticisms she has of the father.
I have to consider the effect of any significant changes in the children's circumstances. There is, since the amendment to the legislation brought about by the Family Law Amendment (Shared Parental Responsibility) Act, considerably less emphasis, at the interim stage, on preserving existing arrangements for the care of children. There is now no longer any general principle that a status quo in respect of arrangements for the care of children should be preserved at the interim stage.
In Goode, the Full Court said that the court rather was required to follow the structure of the amended act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child concerned, regardless of prior care arrangements.
What I think the case really comes down to is whether the issues of family violence, which the mother has raised, which are vehemently disputed between the parties, are such that I should not make orders which would allow Mr Wilson to be significantly involved in the care of M and B, to the extent which he currently desires.
This issue is picked up in section 65DAA(5). As I say, in determining either equal time or substantial and significant time, I have to consider whether such an outcome is likely to be in the best interests of the children and also reasonably practicable. Subsection (5) deals with the issue of reasonable practicality. I have to consider a number of matters. How far the parties live apart; I have already dealt with that. I have to consider the parties' current and future capacity to implement such an arrangement and their future capacity to continue to facilitate such an arrangement.
In this matter I suppose the prognosis is likely to be poor. Regardless of the rights or wrongs of the situation, it seems there have been a number of incidents, between the parties, at handover. However, regardless of what arrangement is ultimately determined, the parties will have to deal with one another, to some extent. It cannot be avoided that the parties, as the parents of young children, have some level of interaction with one another. To my mind that significantly lessens the impact of these concerns.
I also note that the parties separated in September of last year. It was only in June that the father brought this application and it seems that, in the intervening period, the parties have had some capacity to make arrangements for the care of M and B. So although the parties' current situation is not optimal, I am not persuaded that it is completely and utterly irredeemable. It seems to me likely that, if orders are made which will prevent the parties coming into direct contact with one another, it is not necessarily the case that there will be a further unfortunate incident between them.
Most importantly, I also have to consider the likely impact such arrangement - that is, a shared care or a substantial and significant time arrangement - will have on the children concerned, M and B. It is not good for children that they are exposed to disputes between their parents. Separation is a traumatic occurrence for parents but it is also a traumatic occurrence for children, including young children who may not have the intellectual development to understand why their parents have separated and what it means for them. Accordingly, it does not help children if their parents fight with one another in the presence of children. Parental conflict is bad for children. I cannot underline that enough to the parties: parental conflict is bad for children.
I have to determine whether, although the parties mutually agree that they should have equal shared parental responsibility for their children, the level of conflict between the parties is such that, at this stage, it really is not workable to have an arrangement whereby the father spends substantial and significant time with the children concerned.
In all the circumstances of this case, I am not presently persuaded that the conflict is so serious that I should not consider the optimal arrangements for the care of these children, which the legislation envisages. As I have already had cause to observe to the lawyers concerned, it is unfortunate that I have to make the formal practical orders which will delineate how the children are to spend time with both of their parents.
I know very little about Mr Wilson's work schedule. I know very little about Ms Allan's work schedule. The parties I think have each, for obvious reasons, concentrated on the best outcome for them rather than looking at positions in between their polarised positions. However, at the end of the day, neither party suggests anything other than that Mr Wilson should spend significant periods of time with both children. For his part, Mr Wilson does not suggest that the children should not spend a lot of time with Ms Allan, their mother.
At the end of the day, what it comes down to is whether it should be six evenings per fortnight, which Mr Wilson contends is appropriate, or four nights or some lesser amount as Ms Allan contends. Looking at the overall structure of the act, looking at the fact that the presumption in this matter has not been sought to be rebutted, I think that it is likely to be in the best interests of these children that they spend substantial and significant time with both their parents. I do not think that considerations of practicality should stand in the way of that.
For those reasons I propose to make orders essentially along the lines proposed by Mr Wilson. For all these reasons, the orders will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 24 July 2007