Winslow and Lambert
[2007] FMCAfam 950
•16 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINSLOW & LAMBERT | [2007] FMCAfam 950 |
| FAMILY LAW – Children – equal shared parental responsibility – equal time – children’s best interests – two exceptionally good parents. |
| Family Law Act1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 H and H (2003) FLC 93-168 |
| Applicant: | MR WINSLOW |
| Respondent: | MS LAMBERT |
| File number: | LNM 1723 of 2005 |
| Judgment of: | Roberts FM |
| Hearing dates: | 19 & 20 June 2007 |
| Date of last submission: | 20 June 2007 |
| Delivered at: | Devonport |
| Delivered on: | 16 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T McGuire |
| Solicitors for the Applicant: | Ian Guest & Associates |
| Counsel for the Respondent: | Ms R Brown |
| Solicitors for the Respondent: | Bishops |
ORDERS
That MR WINSLOW (“the Father”) and MS LAMBERT (“the Mother”) have equal shared parental responsibility for the children J born in November 1995 and A born in December 1998 (“the children”).
That the children live with the Father as follows:
(a)each second week during school terms from 5.00 p.m. on Friday until the commencement of school on the following Tuesday;
(b)for one week in each of the May/June and September school holidays as agreed, but failing agreement for the first such week;
(c)in even numbered years from after school on the Thursday before Good Friday until 5.00 p.m. on Easter Tuesday;
(d)in odd numbered years from 5.00 p.m. on Easter Tuesday until the start of school on the first day that school resumes;
(e)for one half of the long summer school holiday on a week and week about basis commencing at 4.00 p.m. on 25th December in 2007 and in alternate years thereafter and commencing at 4.00 p.m. on 1 January in the other years;
(f)from 5.00 p.m. on Christmas Eve until 4.00 p.m. on Christmas Day in even numbered years;
(g)between 10.00 a.m. and 4.00 p.m. on Father’s Day if it does not otherwise coincide with time when the children are with the Father; and
(h)at such other times as may be agreed between the parties.
That the time that J lives with the father pursuant to paragraph (a) of Order No. 2 is extended until the commencement of school on Wednesday.
That the children live with the Mother at all other times.
That if the Father is required to work when the children are living with him during school holidays they are to be returned to the Mother’s care from 9.00 a.m. until such time that the Father is able to collect them from the Mother at the conclusion of his work.
That if Mother’s Day occurs on a day when the children are in the care of their Father they are to be returned to her between 9.00 a.m. and 5.00 p.m. on that day.
That either parent is permitted to travel with the children interstate or overseas for a period of up to 28 consecutive days in each year, provided that:
(a)he or she supplies the other parent with the travel itinerary at least 28 days in advance of the intended travel; and
(b)he or she makes the children available to live with that other parent at other times in order to compensate for the time foregone.
That within 30 days the Father is to install internet security blocking on his computer.
IT IS NOTED that publication of this judgment under the pseudonym Winslow & Lambert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
LNM 1723 of 2005
| MR WINSLOW |
Applicant
And
| MS LAMBERT |
Respondent
REASONS FOR JUDGMENT
In contested family law matters, courts rarely get an opportunity to congratulate both parents upon the quality of their parenting. However, this is one of those rare occasions. Even though the parents in this matter may have different parenting styles, they are both exceptionally good parents.
It is also pleasing to adjudicate in a matter in which there were no allegations of violence or excessive drug or alcohol consumption. Indeed, the only context in which alcohol was mentioned was in relation to the parents being able to sit down together over a glass of wine.
The issue
The issue that the Court has to decide is whether the children J born in November 1995 and A born in December 1998 should spend equal time with each of their parents, or whether they should live more with one parent than with the other.
Background
MR WINSLOW (“the Father”) and MS LAMBERT (“the Mother”) were married in late 1990 and separated in early 2004. Their divorce became final in late 2006. The two children named above are the children of their relationship. Neither party has any other children.
The Mother has remarried. The Father has not re-partnered on a lasting basis.
The children live with the Mother and have been spending time with the Father each second weekend and during school holidays. However, the time spent with him during school holidays is not as lengthy as the Father would like. Notwithstanding this, it is pleasing to note that the parties now agree that the children will spend equal time with their parents during the school holidays and that, if the Father is required to work when the children are with him, he will avail himself of the Mother’s offer to look after them.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
There has been some academic debate about the relative weight to be given to “primary considerations” and “additional considerations”. I feel sure that the debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[6]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[7]
[6] Section 61da
[7] Subsection 61DA(4)
However, if that presumption does apply, it does not necessarily follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
· consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
· if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
It is clear that the court must follow the legislative pathway that is now provided by the Act[10].
[10] See Goode & Goode (2006) FLC 93-286
The parties’ proposals
The Father wants the children live with him and the Mother equally on a week and week about basis and he seeks an Order for equal shared parental responsibility.
The Mother’s position changed as the hearing progressed. However, by the end of the hearing her proposal was as follows:
a)That the children live with her.
b)That the parties share equal parental responsibility.
c)That the children spend time with the Father as follows:
i)Each second weekend from 5.00 p.m. on Friday until the commencement of school on Tuesday.
ii)For one week in each of the May/June and September school holidays.
iii)From Good Friday at 10.00 a.m. until the following Friday in even numbered years and “normal weekend time” recommence on the Friday after Good Friday in odd numbered years.
iv)For one half of the long summer school holiday on a week and week about basis commencing at 4.00 p.m. on Christmas Day in odd numbered years and 4.00 p.m. on New Years Day in even numbered years.
v)From 5.00 p.m. on Christmas Eve until 4.00 p.m. on Christmas Day in even numbered years.
vi)Between 10.00 a.m. and 4.00 p.m. on Father’s Day if it does not otherwise coincide with time to be spent with the Father.
vii)At all other times as may be agreed between the parties.
d)That the Father’s time with J each second weekend be extended until the commencement of school on Wednesday.
e)That when the children are in the care of their Father during holidays if he is required to work then they be returned to the Mother between the hours of 9.00 a.m. and 5.00 p.m. or whenever he is able to collect the children at the conclusion of his work.
f)That if Mother’s Day falls when the children are in the care of their Father they be returned to her between 10.00 a.m. and 4.00 p.m. on that day.
g)That upon the Mother giving 28 days notice to the Father she be permitted to travel with the children interstate or overseas for a period of up to 28 consecutive days in each year provided that she provides the Father with the travel itinerary, the Father is granted make up time and both parties have liberty to apply.
h)That both parties attend a “Parents in Contact” course.
i)That the Father install internet security blocking on his computer.
In opening on behalf of the Mother her counsel indicated that it did not matter whether the children’s time with the Father was expressed to be “lives with” or “spends time with”
Equal Shared Parental Responsibility
The parties are agreed that there should be equal shared parental responsibility for the children.
As mentioned above, I must consider whether spending equal time with each of the parents is in the best interests of the children and whether it is reasonably practicable. If I consider that the children should not spend equal time with each parent, I must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each parent.
Should there be equal time?
Federal Magistrate Ryan (as she then was) gave a very useful summary in H and H[11] of the factors that the court should consider in relation to equal time. Her Honour said at paragraphs 47 and 48:
[11] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor s 68F(2). Each factor fits comfortably within s 68F(2).
The section 68F(2) that her Honour was referring to has been repealed. The matters set out in that former section 68F(2) are now incorporated (and expanded upon) in section 60CC.
In order to determine whether equal time is in the best interests of the children, I must consider the matters set out in section 60CC.
Primary considerations
The Benefit of having meaningful relationships with both parents
It is quite clear to me that both children currently have close and meaningful relationships with each of their parents.
The author of the Family Report (“the Family Consultant”) observed that it was obvious that the children each share a loving and comfortable relationship with their Father.
She also observed that J communicated openly with his Mother (and her Husband) and that A was “in tune” and responsive to her Mother’s emotions. The Family Consultant observed that the Mother appeared slightly nervous and emotional during the interview process, and that because of this, A attempted to comfort her Mother in subtle way by seeking to be in close proximity, being very affectionate towards or attempting to reassure her by maintaining constant eye contact.
Protecting the children from harm from abuse neglect or family violence
This is not a relevant factor in this matter.
Relevant additional considerations
Children’s views
Although the Father had filed an Amended application on 22 March 2007 seeking equal time with the children, it appeared that the children were not aware of that at the time they were interviewed on 30 April 2007. In my view that reflects very well upon both parents, in that it is clear that neither has involved the children in their dispute.
In relation to J, the Family Consultant said:
J had not given thought to spending more time with his father during the week, however he said that he’d like the idea of having dinner more frequently with his father and enjoys it when his father comes to dinner with his mother and (the Mother’s husband)…J indicated that he did not mind where he lived as long as he could spend time with both of his parents. From J’s perspective he currently has nearly daily contact with both parents and therefore it did not really matter to him where he slept.
In relation to A, she said:
A appeared hesitant to talk to me on her own and I therefore spoke to her in the presence of J. It was clear that A and J share a close relationship. A would often refer to J and allow him to speak for her. A clearly likes her father attending her gymnastics and other school events and enjoys spending time with her father on weekends. A however also indicates that when she is at her father’s, she misses her mother and really looks forward to returning home.
During cross-examination by the Mother’s counsel, the Family Consultant agreed that the question of sharing care on a weekly basis had not been discussed and as a result she had not specifically spoken to the children about that. She said:
When I spoke to the children, neither of them said that they wanted to change. What was happening was the way it always had been. When they came into the interviews, they didn’t actually have something set in their minds. They obviously hadn’t been prompted by anybody.
She commented further that the children had not really thought about the question of change and that it was refreshing that the children had not been influenced by the parents (as is often the case in other matters).
The Relationships of the children with the parents and other persons
As mentioned above, it is quite clear that the children have close and meaningful relationships with both parents.
They also have a good relationship with the Mother’s husband and a female friend of the Father. (The Father had been in a relationship with that friend but the unchallenged evidence was that that relationship is now only platonic, notwithstanding that she spends some significant time at his house).
The willingness and ability of the parents to facilitate and encourage the relationship with the other parent
I have no concerns about either party’s willingness to facilitate and encourage close and continuing relationships between the other parent and the children. They have each been doing that since they separated, notwithstanding that their parenting styles are not identical.
The Mother is the more organised of the two parents, while the Father’s attitude is more laissez faire. However, it was clear to me that each recognised that the other has something positive to offer the children.
The Father’s interests are more inclined towards outdoor and sporting activities while the Mother places more emphasis upon organisation and routine but each recognises that there needs to be a balance, and neither has a view or emphasis that excludes the other. In this respect, they appear to complement each other.
The Family Consultant reported that the Mother had spoken highly of the Father’s commitment to the children and that the Mother felt that he has a lot to offer them. Similarly, the Family Consultant reported that the Father had described the Mother as a loving and committed mother and made no criticism of her role with the children. Indeed, in her oral evidence the Family Consultant said that the Father was very proud of the Mother.
The Family Consultant’s evidence very clearly indicated that each parent respects the role of the other and each will positively facilitate and encourage the children’s relationships with the other parent.
The likely effect of any change in the children’s circumstances
In her report the Family Consultant said:
It is clear that both parents have different life-styles and they have identified that they each have different parenting styles; Ms Lambert clearly values organisation and supervision, whereas Mr Winslow has a more relaxed view of parenting and encourages the children’s resilience and independence. J and A will clearly benefit from spending significant time with both of their parents and will gain different experiences in both homes.
In relation to J, the Family Consultant commented that as he matures into adolescence, he may seek a more flexible living arrangement between his parents.
It was clear that the Family Consultant was of the view that A in particular would not benefit from spending equal time with her Father. She said that A was comfortable with “living” with her Mother and “visiting” her Father. A identified her Mother’s house as “home”, whereas her Father’s house was “dad’s place that she likes to visit”. The report writer commented that, at this stage in A’s life, it is important that she does not spend too many nights away from her Mother. In relation to that she said in answer to questioning from the Mother’s counsel:
I don’t see her wanting to be too long away from her home. As she gets older she’ll probably want to spend more time away from home, but at the moment that was already an issue for her, and that was only from Friday to Monday. She misses home in that three day period. Therefore when you mentioned before, “How would she go with seven days, seven days?” my initial reaction, “Uhh – you know, that’s along time away from home”.
When questioned further about how many nights per fortnight A would cope with away from her mother, the Family Consultant prefaced her reply by confirming that this was not directly discussed because the Father’s proposal had been different at the time of the interviews. However, it was clearly her view that A would not cope with as many as five nights per fortnight away from her mother.
The parents’ capacities to provide for the children’s needs
Nothing in the evidence gave me any concerns about either parent’s capacity to provide for the children’s physical or emotional needs. As I said at the outset, they are both exceptionally good parents.
The attitudes of the parents
This consideration includes not only the parents’ attitudes to the children but also to the responsibilities of parenthood as demonstrated by each parent. This is tied in with subsection (4) of section 60CC, which requires the Court to consider the extent to which each of the parents has fulfilled, or failed to fulfil, the responsibilities as a parent, and in particular the extent to which the parents have participated in making decisions about major long terms issues in relation to the children.
I repeat that both are exceptionally good parents and it is clear to me that the future welfare of J and A is in very capable hands.
Is equal time reasonably practicable?
It is very clear that the parties live close to each other (even if they cannot agree upon exactly how many metres their houses are apart). Consequently, that will not cause any major difficulties if equipment or school work is inadvertently left at the other house.
Of the matters referred to by her Honour in H and H, the only factor that could possibly be of concern is the parties’ ability to communicate. In this regard, the mother expresses some concerns. However, I have more confidence than the Mother. In my view, the parties will be able to resolve any communication difficulties. Parties who can talk together over a glass of wine must surely be able to discuss matters involving their mutual interest in their children. I also note that, when he was questioned, the Mother’s husband indicated a willingness to assist in the communication process.
Is equal time in the best interests of the children?
In my view, spending equal time with each parent is not in the best interests of the children, and I base that view primarily upon the evidence of the Family Consultant.
It is clear to me that the children should spend more time with their father (and the orders sought by the Mother appear to acknowledge that), but that does not mean that they should spend equal time with each parent. J is clearly very involved with his father in activities such as soccer and he is of an age when he can spend more time with his father than A.
Conclusions
I am therefore of the view that the orders should reflect the fact that J should spend more time than A in the Father’s care. The orders that I make are set out at the start of these Reasons.
The Mother sought an order that both parties attend a “Parents in Contact” course. I am very aware of the value of such courses, but they are designed to assist people who do not have the exceptional parenting qualities of these parties. Consequently, I do not believe that such an order is necessary.
The Mother also sought an order requiring the Father to install internet security blocking on his computer. I will make such an order because the Father indicated that he is quite happy to do so.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Roberts FM
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