Withnell and Withnell
[2008] FMCAfam 28
•18 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WITHNELL & WITHNELL | [2008] FMCAfam 28 |
| FAMILY LAW – Parenting – equal time – substantial and significant time – weight to be attached to evidence from the independent expert – young children. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA Family Law Amendment (Equal Shared Parental Responsibility) Act 2006 |
| Goode & Goode (2006) FamCA 1346 Newlands and Newlands [2007] FamCA 168 |
| Applicant: | MR WITHNELL |
| Respondent: | MS WITHNELL |
| File number: | ADC3559 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 8 and 9 November 2007 |
| Date of last submission: | 9 November 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 18 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms D Morosini |
| Solicitors for the Applicant: | Di Morosini & Co |
| Counsel for the Respondent: | Ms T Lewis |
| Solicitors for the Respondent: | Stuart Andrew |
ORDERS
That the parents share equally in parental responsibility for the children S born in 2000 and B born in 2004.
That during school terms the children live with each parent as follows:
(a)with the father:
(i)in alternate weeks commencing on the first Wednesday of each school term from 12 noon or the conclusion of school or kindergarten on Wednesday until 6.00 pm on Sunday, or 6.00 pm Monday in the event of a public holiday;
(ii)from 12 noon or the conclusion of school or kindergarten on Wednesday until the commencement of school or kindergarten on Friday in intervening weeks commencing on the second week in each school term;
(b)with the mother at all other times.
UPON NOTING the short school holidays are defined as commencing on the last day of the school term and concluding at 6.00 pm on the day prior to school resuming
That during the short school holidays the children live with each parent as follows:
(a)with the mother:
(i)for the first half of the short school holidays in 2008 and each alternate year thereafter from the conclusion of school on the last day of the school term until 6.00pm on the following Friday;
(ii)for the second half of the short school holidays in 2009 and each alternate year thereafter from 10.00am on the middle Sunday until 6.00pm on the following Sunday (or the last day of the holiday period if not a Sunday).
(b)with the father:
(i)for the second half of the short school holidays in 2008 and each alternate year thereafter, from 6.00pm on the second Friday until 6.00pm on the last Sunday (or the last day of the holiday period if not a Sunday);
(ii)for the first half of each short school holiday period in 2009 and each alternate year thereafter from the conclusion of school on the last day of school term until 10.00am on the middle Sunday;
That during the Christmas school holidays the children live with each parent on an alternate week basis as follows:
(a)with the father in the first week of the 2008 holidays (and each alternate year thereafter);
(b)with the mother in the first week of the 2009 holidays (and each alternate year thereafter);
(c)that handovers take place at 6.00pm on Fridays;
(d)this order is subject to paragraph 5 with respect to Christmas arrangements.
That the children spend further time with each parent as follows:
(a)with the father:
(i)from 10.00am until 6.00pm on Father’s Day each year;
(ii)in alternate years from the conclusion of school Maundy Thursday until 6.00pm Easter Saturday commencing in 2008 and in intervening years from 6.00pm Easter Saturday until 6.00pm Easter Monday commencing in 2009 notwithstanding any other orders for school holiday time with either parent;
(iii)in alternate years from 5.00pm Christmas Eve until 2.00pm Christmas Day commencing in 2008;
(iv)in intervening years from 2.00pm Christmas Day until 11.00am Boxing Day commencing in 2009.
(b)with the mother:
(i)from 10.00 am until 6.00pm on Mother’s Day each year;
(ii)in alternate years from the conclusion of school Maundy Thursday until 6.00pm Easter Saturday commencing in 2009 and in intervening years from 6.00pm Easter Saturday until 6.00pm Easter Monday commencing in 2008 notwithstanding any other orders for school holiday time with either parent;
(iii)in alternate years from 2.00pm Christmas Day until 11.00am Boxing Day commencing in 2008;
(iv)in intervening years from 5.00pm Christmas Eve until 2.00pm Christmas Day commencing in 2009;
(c)in the week following Christmas Day with each parent at times to be agreed between the parties to facilitate contact with extended family and in default of agreement the children spend time with the parent with whom they are not otherwise living from 10.00am on 27 December until 6.00pm on 28 December;
(d)on the children’s birthdays and each parent’s birthday for a period of two (2) hours if a school day and four (4) hours if a non school day;
(e)at other times including special occasions as may be agreed between the parties.
That each parent facilitate reasonable telephone communication between the children and the other parent as follows:
(a)with the father each Monday evening at 7.00pm when the children are in the mother’s care;
(b)with the mother each Thursday evening at 7.00pm when the children are in the father’s care;
(c)on at least one other occasion each week during school holiday periods; and
(d)at other times when requested by the children.
That both parents are at liberty to attend:
(a)any school, sporting or other extracurricular events and activities to which parents are usually invited; and
(b)any medical or health related appointments for either child.
That both parents are at liberty to arrange direct with any school to ensure they each receive copies of all school notices, newsletters and reports.
That each parent shall communicate with the other and keep the other party advised of all information in relation to any medical care or treatment for either child which may occur while the child is living with or spending time with that party.
That the parties establish a communication book to exchange information about the children’s care, welfare and development.
Pursuant to s.13C of the Family Law Act 1975 the parties participate in family counselling within three months from the date of judgment, to address their future co-parenting relationship and improve future communication about parenting issues.
That the mother provide all photographs of the children taken during the parties’ marriage to the father within fourteen (14) days, to enable him to obtain copies of the photographs, provided that the father ensure that all the photographs are returned to the mother in good order and repair within a further fourteen (14) days.
IT IS NOTED that publication of this judgment under the pseudonym Withnell & Withnell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC3559 of 2007
| MR WITHNELL |
Applicant
And
| MS WITHNELL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to the care arrangements for two children S born in 2000 (now aged 7 years) and B born in 2004 (now aged 3 years).
In the months following separation, the parties were able to negotiate the children’s care arrangements. These negotiations eventually developed into an arrangement where S and B spend seven nights each fortnight with either parent, on a split week basis. The father says this arrangement was negotiated amicably between them. The mother concedes that she agreed that the children should live with each parent half time but says she did so in order to avoid conflict with at the time of separation.
The parties attended mediation in May 2006 and reached agreement with respect to property issues. They also agreed to continue the existing parenting arrangements at that time. Unfortunately, subsequent difficulties arose between the parties which led to these proceedings. The parties remain unable to agree about the children’s long term parenting arrangements.
Background
The father and mother are both 34 years of age. They married in March 1997 and for most of their married life lived on a farming property outside the town of L. The mother worked until S was born and then took on the role of primary care giver to the children. The father worked as a farmer throughout the marriage but was substantially involved in the children’s care outside his work commitments.
The parties separated in October 2005. The mother left the family farm and moved with the children into rental premises in L. The father moved into L soon thereafter and purchased a property a few doors down from the mother in the same street, in the hope that living nearby may foster a reconciliation between them. The mother felt this was intrusive and found it uncomfortable having the father living in such close proximity.
The parties remain separated. The father is living with his new partner, Ms M, and they have recently given birth to a son, H. The mother has also commenced a new relationship however she and Mr B are not living together. The father has continued farming on properties owned by his parents and uncle and describes himself as a “self employed” farmer. The mother works part time as a shop assistant.
Since December 2005 the living arrangements for the children have been as follows:
a)with the father:
i)on alternate weeks from 4.00pm Wednesday until 9.00am Sunday;
ii)on intervening weeks from 3.00pm Wednesday until 9.00am Saturday and from 9.00am until 5.00pm Sunday.
b)with the mother at all other times.
Unfortunately the parties have experienced ongoing difficulties in their co-parenting relationship. They each accuse the other of being inflexible and unco-operative. Their co-parenting relationship seems to have been based on mutual mistrust and hostility over the last two years.
The parties’ positions
The father initially sought to continue a split week shared care arrangement such that the children live with him from 3.00pm Wednesday until 5.00pm Sunday one week and from 3.00pm Wednesday until 9.00am Saturday the next week. However he changed his position at trial, seeking orders that the children live with each parent on a week about basis. If he is unsuccessful in that regard his secondary position is for a split week care arrangement as described above.
The mother initially sought orders that the children live with her and spend approximately four nights per fortnight with the father. However by the time of trial the mother’s position had also changed and she sought orders that the children live with the father as follows:
i)from 12.00noon or the conclusion of school/kindergarten on Wednesday until 5.00pm on Sunday in alternate weeks; and
ii)from 12.00noon or the conclusion of school/kindergarten on Wednesday until the conclusion of school on Friday in the intervening weeks;
The mother’s position reflects a change to the present care arrangements insofar as the children would be in her care eight nights per fortnight and in the father’s care six nights per fortnight.
Both parties agree that an order for equal shared parental responsibility is appropriate. They also agree that school holidays and special occasions should be shared between them as follows:
a)The children spend time with the father:
i)from the conclusion of school Maundy Thursday until 5.00pm Easter Saturday 2008 and each alternate year thereafter;
ii)from 5.00pm Easter Saturday until 5.00pm Easter Monday 2009 and each alternate year thereafter;
iii)for one half of the short school holidays (although the parties do not agree about the precise structure of this arrangement);
iv)for one half of the Christmas school holidays each year on a week about basis;
v)from 2.00pm Christmas Day until 11.00am Boxing Day 2007 and each alternate year thereafter;
vi)from 5.00pm Christmas Eve until 2.00pm Christmas Day 2008 and each alternate year thereafter.
Regarding the short school holidays the mother proposes that she have the first half of each short school holiday which will make it easier for her to arrange leave with her employer. She also seeks to have the children in her care for the last week of each Christmas school holiday period. The father would prefer the arrangements rotate between them.
Both parties have extended family that visit across the Christmas/New Year week. The mother proposes a set arrangement for the children to have time in the other parent’s care to ensure the children can spend time with extended family. The father agrees that the extended family relationships are important but would prefer the parties negotiate special visits on a “case by case” basis.
Both parties also agree on regular phone communication between the children and each parent.
Legal Principles
When making a parenting order, the best interests of the children are the paramount consideration. Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision making responsibilities. Section 60CC sets out the factors the Court must apply in determining what outcome will be in the children’s best interests. As discussed by the Full Court in Goode & Goode[1], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.
[1] (2006) FamCA 1346, para.10
Section 60CC is divided into primary considerations and additional considerations. The primary considerations which the Court must take into account are the benefit for children in having a meaningful relationship with both of their parents and the need to protect children from abuse, neglect or family violence. Fortunately there are no allegations of abuse or violence that affect the children's welfare and my prime focus is therefore upon the boys maintaining a meaningful relationship with both of their parents as they grow up.
There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address those further in these reasons. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities.
The Court must also consider s.61DA when making a parenting order. This section imposes a presumption that it is in the children’s best interests for their parents to share parental responsibility for the children equally, unless the presumption does not apply or is rebutted. The parties agree that the presumption applies and I will make an order in that regard.
An order for equal shared parental responsibility triggers the effect of s.65DAA. Accordingly, I must consider whether it is appropriate to make orders for the children to spend equal time, or substantial and significant time, with each of the parties. In light of the parties’ proposals, the real issue in dispute is whether the children’s best interests will be promoted by an order for equal time in the strict sense of seven nights per fortnight (as sought by the father) or whether it is more appropriate for the children to spend significant and substantial time in the care of their father on six nights per fortnight (as sought by the mother).
The Full Court in Goode and Goode[2] has considered the appropriate approach to parenting cases since the enactment of the Family Law Amendment (Equal Shared Parental Responsibility) Act in July 2006. I have already identified the parties’ competing proposals. I will address the issues in dispute in my consideration of the s.60CC factors, along with my consideration of the arguments for and against equal time as opposed to substantial and significant time in the care of each parent.
[2] Goode and Goode (supra)
The hearing
The hearing took place before me on 8 and 9 November 2007. The father relied upon the following documents:
a)Amended Application filed 19 June 2007;
b)The father’s Trial affidavit filed 5 October 2007;
c)Trial affidavit of Ms M filed 5 October 2007;
d)Trial affidavit of Ms W filed 9 October 2007.
The mother relied on the following documents:
a)Response filed 6 December 2006;
b)The mother’s Affidavit filed 6 December 2006;
c)The mother’s Affidavit filed 23 March 2007;
d)The mother’s Affidavit filed 5 October 2007.
A family report was prepared by Mr Arnold Rudzitis on 28 May 2007, along with a brief addendum report on 7 June 2007. Both reports were received into evidence and Mr Rudzitis was cross examined by both parties.
The father and his witnesses attended and were available for cross examination, as was the mother. I am satisfied that both parties and all witnesses endeavoured to give their evidence in an honest and straight forward manner. The father was more inclined to give background context while answering questions in cross examination. While the parties presented differently in the witness box, I am satisfied that both parties conducted the hearing with the children’s best interests at heart. Where the parties’ evidence differed I consider this is due to differences in perception and recollection rather than any attempt by either party to mislead or confuse the Court.
Section 60CC – primary considerations
It was clear from the evidence of Mr Rudzitis and each party that the children enjoy a close and loving relationship with both their parents. On either party’s proposal, S and B will continue to enjoy and benefit from each parent’s involvement in their care and development as the boys grow up. I am satisfied that both parties are seeking outcomes that will ensure the children continue to enjoy a meaningful relationship with each parent into the future.
Section 60CC(3) – additional considerations
Parenting capacity and each parent’s attitude and commitment to their parental responsibilities
Both parents were involved and committed parents prior to the separation. Given the father’s employment, the mother took on the primary parenting role, but the father was clearly actively involved in all aspects of the children’s care. Since separation the parties have been sharing the parenting responsibilities for the children.
I am satisfied that both parents take their parenting responsibilities seriously and are focussed on the boys’ best interests. The only real area of concern relates to the communication difficulties that exist between them.
The father describes the mother as hostile and “niggling” towards him at handovers. He resents her attempts to discuss parenting issues at handover, saying he would prefer to discuss them away from the children. The mother, in turn, sees no difficulty in discussing practical parenting issues at handover and feels that such discussions should be able to occur quickly and easily. Her expectations in that regard are somewhat optimistic, given the difficulties the parties have had in negotiating even the smallest variation to the existing arrangements.
There is no doubt that the mother sees her primary role as that of parent to S and B. While she works part time, the mother gave evidence that she structures her employment around her parenting commitments. The father is equally committed to his parenting responsibilities. He gave evidence that as he works for his family, he has an unusual degree of flexibility in his farming work.
At times the father relies on assistance from his mother or combines his parenting and work commitments by taking B with him out to the farms. I make no criticism of the father in this regard. The mother concedes that both boys enjoy their time on the farm. The mother raised concerns regarding supervision and safety but I am satisfied the father is alert to B’s welfare even when he is working.
The mother says that father is minimising the extent of his farming responsibilities. Taking into account the time demands generally required in running a farm, I consider there may be times when the father’s farming duties will impact upon his parenting responsibilities. However I am satisfied that the father will minimise this impact where possible and that he will otherwise make appropriate arrangements for the children’s care, whether through child care, the paternal grandmother or Ms M.
While each party sets out criticisms of the other parent in their affidavits, generally they agreed that the children are well cared for. This was reflected in their evidence during the trial. The father was anxious to assure the Court he thought the mother was “a great mother”. Likewise the mother acknowledged the father’s positive role in the children’s day to day care.
These views are confirmed by the evidence of Mr Rudzitis. His initial report comments upon the observed interaction between the children and each parent. Mr Rudzitis noted that S and B’s behaviour was more difficult whilst in the mother’s care and required greater input from her however he did not see this as a major criticism of the mother or her parenting capacity. He noted that the boys were playing outside whilst at the father’s home which meant they were engaged and occupied. He also acknowledged that his observations of the children with the mother occurred shortly after the boys returned from the father’s care and agreed that some of their behaviour could simply reflect the children’s emotional adjustment as they move from one household to the other.
The parties have clearly experienced difficulties in their relationship since separation. There have been a number of disagreements and disputes between them. Taken as a whole, these disputes reflect a lack of trust about the other parent’s motives and intentions, rather than any real criticism of the other party’s parenting ability.
Having heard evidence from both parties, I consider they have both contributed to these past problems. They will need to improve their communication in the future, given there are many parenting decisions they will need to negotiate in the years ahead.
Children’s relationship with each parent and significant others and each parent’s capacity to facilitate these relationships
The children love both parties and enjoy a positive and meaningful relationship with them. Mr Rudzitis confirms this and neither party seriously suggested otherwise. I agree with Mr Rudzitis that in general, both parents are willing to facilitate and encourage a close and continuing relationship between the children and the other parent, notwithstanding past difficulties.
Mr Rudzitis acknowledged the mother’s proposal reduces the children’s time in the father’s care during school terms, but he did not interpret this to mean the mother was undermining the children’s relationship with the father. Rather, he considered the mother was genuine in her support for the children spending extensive time with the father even though she did not consider equal time was in their best interests.
The boys clearly enjoy a good relationship with the father’s partner,
Ms M and with the mother’s partner, Mr B. Mr B is not living with the mother but he spends regular time in the household. There is no criticism of the boys’ interaction with either Mr B or Ms M. Mr B did not give evidence, but I take no issue with this, given he and the mother are not yet co‑habiting.
Ms M gave evidence and was cross examined briefly. She acknowledged that she and the mother have a cool relationship and felt the mother had ignored any overtures of friendship she had initiated. The mother conceded that she may have ignored greetings from Ms M at times. The mother candidly acknowledged that she could have been friendlier towards Ms M and agreed that it would be better for the boys to see a friendly exchange between their mother and stepmother. Both the mother and Ms M acknowledged that, given their circumstances, they were never likely to be good friends.
While the mother accepts that Ms M will play a role in caring for the boys she remains concerned that the father may hand over primary parenting responsibilities to Ms M or the paternal grandmother, particularly while he is working. The mother’s concerns are not based on any criticism of the paternal grandparents or Ms M, but rather upon her own sense of loss in relation to her parenting time with the boys.
The mother identifies very strongly with the primary parenting role that she enjoyed during the marriage. She has had to make considerable adjustments in negotiating different parenting arrangements since the separation. The mother’s evidence on this topic was open and forthright. She acknowledged that she was “still envious” of the time that the boys spent in the father’s household simply because it was time away from her. The mother feels she has “lost” her primary parenting role since separation; by contrast the father has continued to maintain both his significant parenting role and his working life as a farmer.
Mr Rudzitis noted that the mother responded positively to the forthcoming arrival of the father’s new child and felt the mother was genuine in this regard. I accept Mr Rudzitis’ evidence in this regard. The father’s son H was born in 2007. Clearly, S and B are excited by the arrival of their little brother and will enjoy a developing relationship with him in the future. However the father alleges that the mother had reacted negatively to H’s birth and that handovers had become more difficult in the weeks following his arrival. He says there had been hostile conversations and described the mother as “more bitter”.
The parties gave conflicting evidence about their communication around the time of H’s birth. I do not intend to make formal findings about these exchanges. I view the parties’ evidence in the context of a couple still adjusting to their post-separation parenting relationship. Sadly, each party is inclined to place the worst interpretation on the other’s behaviour, particularly in the context of these Court proceedings. Hopefully this dynamic will improve once this Court case concludes.
Mr Rudzitis noted that the extended family dynamics may have been a complicating factor for the parties, particularly in circumstances where the families all live in a small community such as L. While there have been some difficulties in the past, both parties are willing to facilitate extra time for the children with the other parent during the post Christmas week, so the boys can spend time with extended family. Hopefully this co-operative attitude will develop in the future.
Likely effect of proposed changes upon the children
Both party’s proposals will require some change in the children’s pattern of care with each parent. Significantly, Mr Rudzitis was strongly opposed to a week about arrangement for S and B based largely on B’s young age. Mr Rudzitis considered that young children, particularly pre-school children of B’s age are often unable to manage separation from either parent for a block of seven days at a time.
I place considerable weight upon Mr Rudzitis’ evidence on this topic. His opinion is based upon his professional training and his experience as a psychologist employed with the Family Court for many years as well as his subsequent experience over the past twelve years working with families and preparing reports for family law proceedings.
The children are in a set routine at present. I consider it will be beneficial for the boys to minimise the changes to this routine, as far as possible. I am confident that both parents will ensure that any changes occur with minimum disruption for S and B.
Other considerations
Mr Rudzitis did not interview the children separately. Given their ages, their views would carry minimal weight in any event. There is no practical difficulty or expense in the children spending time with or living with each parent, given the parties live so close together. I do not consider there are any significant cultural or lifestyle issues that affect my decision nor are there any concerns surrounding family violence or abuse.
Section 65DAA – equal time or substantial and significant time
The present parenting arrangements for S and B seem to provide an equal time regime insofar as the children spend three nights in each parent’s care one week and four nights in the next week. However, the children have also been spending each alternate Sunday in their father’s care. Does this mean the existing parenting arrangements fall outside a definition of “equal time”?
Section 65DAA does not define what “equal time” actually means. Is it to be calculated in terms of nights spent, days spent or even hours spent in each parent’s care? Is “equal time” to be calculated across a week, a fortnight or a year? By contrast, s.65DAA(3) provides a precise definition of “substantial and significant time”, but even this detailed definition does not quantify how many nights (or days, or hours) children should spend with a parent.
At the end of the day, the issue to be determined in this case is not about the quality of the parenting in either parent’s household; rather it is about how the parenting responsibilities should be divided between the parents, now that they are separated. The father argues that the only appropriate outcome is a strictly equal outcome of seven nights per fortnight. He believes any other outcome will compromise the children’s relationship with him.
In my view this focus on the number of nights that the children spend with each parent is very much an adult perspective. It is difficult to imagine that S or B count up the days or nights they live with each parent; they simply need to know that they have a settled routine of regular time in each parent’s care.
Section 65DAA(1) directs the Court to consider equal time with each of the parents if it is in the children’s best interests and reasonably practical. Clearly there are no practical impediments to an order for equal time for these children. The question is whether such an outcome is in the best interests of S and B.
The particular circumstances of this case are finely balanced. In such circumstances the evidence of the independent expert assumes greater importance. Counsel for the father rightly noted that the evidence and opinion of an expert witness is but one part of the evidence before the Court. While it should be given due weight the Court is not bound to accept the recommendations of the expert witness. I agree with that submission, however expert evidence should always receive “careful consideration by the trial Judge”[3]. When the parties’ positions are so close and the differences between their positions so finely balanced I find the evidence of Mr Rudzitis carries significant weight in my determinations.
[3] Newlands [2007] FamCA 168 at para 98
There was some confusion regarding the existing care arrangements for S and B at the time Mr Rudzitis prepared his first report. Mr Rudzitis repeatedly refers to “S’s and B’s week about shared residence”. His addendum report clarifies the care arrangements and his recommendations for the future, based on a split week routine where the children spend four nights each week in the care of the mother and three nights each week in the care of the father. In his view, the boys’ relationship with their father would not be compromised or undermined by such a change and it would provide a settled routine.
Notwithstanding Mr Rudzitis’ evidence the father maintains his position seeking week about shared care. The father felt that week about parenting was best for the boys as it was a stable settled routine and removed any midweek handovers. He referred to the satisfactory progress of two earlier one week periods that the boys spent in his care during the 2007 school holidays.
Mr Rudzitis did not challenge the father’s evidence in this regard but noted that school holiday arrangements are an exception. The effect of his evidence, as contained in his addendum report and in cross examination, was that an occasional longer block of days during school holidays is very different from a regular and ongoing week about arrangement. He maintained his opinion that young children, particularly a child of B’s age, are unable to cope with seven days and nights away from either parent on a regular basis and that such an outcome was not in B’s best interests.
Mr Rudzitis was asked to comment on the mother’s proposal for the children to live with the father four nights one week and two nights the next week, to allow each parent to enjoy a full weekend with the boys. He agreed that it may be beneficial for the boys to enjoy an uninterrupted weekend with each parent and saw no difficulty with this proposal. Of course, a similar consequence would flow from a seven day week about care regime.
In considering whether an order for the children to spend equal time, or substantial and significant time with each parent I am particularly influenced by Mr Rudzitis’ evidence which I summarise as follows:
a)a seven night rotating care regime is too long for children of this age, particularly for B;
b) a parenting regime that is “known and predictable” is important for the children;
c) the children would benefit from having a full weekend in each parent’s care rather than splitting the weekend time, as presently occurs;
d)the children’s relationship with both parents is strong and secure;
e)the children would continue to enjoy a meaningful relationship with their father whether they spend six or seven nights in his care each fortnight.
Conclusion
When I take into account all of the evidence before me I do not consider a seven day week about parenting regime is appropriate or in the children’s best interests. In my view the children’s best interests will be promoted by ensuring the children spend substantial time with each parent while minimising any change in their present routine and maximising the children’s weekend time with each parent.
I conclude that during school terms the children should live with the father from Wednesday afternoon until Sunday evening in one week and from Wednesday afternoon until Friday afternoon in the following week. This maintains the present Wednesday handover pattern that the children are familiar with, but allows the children to spend a full weekend with each parent, rather than splitting the weekends, as presently occurs.
I have considered other care arrangements such as continuing the children’s time with the father until Saturday morning on intervening weeks, but this precludes S and B from enjoying a full weekend with each parent. I have also considered swapping handovers between Tuesday and Wednesday in alternate weeks but this would be potentially unsettling and disruptive to the children’s school week.
I have also considered extending the children’s time with the father through to Monday morning on alternate weeks, but again, I am influenced by the importance of maintaining some stability in the children’s routines. The boys are in a settled pattern where they start each school week from the mother’s home and I am consider it is their best interests to minimise the changes to their weekly routine.
These orders reflect an ongoing arrangement where the boys will spend significant and substantial time with each parent, but not equal time. The father is clearly opposed to any reduction in his parenting time with the boys. He considers the children’s best interests are promoted by S and B spending an exactly equal number of nights in each parent’s care.
Section 65DAA requires the Court to consider equal time but the Family Law Act does not mandate such an outcome. At the end of the day the Court must be guided by the children’s best interests. In my view the children’s best interests are promoted by maintaining some continuity in the existing care arrangements while ensuring the boys spend substantial time with both parents and enjoy a full weekend in each parent’s care.
The father calculates that such an outcome will result in him losing approximately 20 nights each year with the children. I understand the father’s resistance to such an outcome but my decision must be based on what I consider to be the best interests of S and B, rather than an outcome that is “fair” to the parents.
As noted in the hearing, the structure of the orders means the children will have their pupil free days in the care of the father, as these days usually fall on a Friday. It is also appropriate to extend the children’s weekends in the father’s care to 6.00pm Monday in the event of a public holiday Monday. Mr Rudzitis put forward a further option of the children spending extra time with the father during school holidays. I am satisfied that such an order is appropriate and consistent with the best interests of the children and I have structured the orders for the short school holiday periods accordingly.
Turning to the precise detail of the orders and the matters not yet agreed between the parties, I accept the mother’s need for some certainty in terms of negotiating holidays with her employer. To that extent I will order that the children spend either the first or second week of the short school holidays in the mother’s care in alternate years. This should provide sufficient certainty for her to negotiate leave arrangements in the future.
In relation to the Christmas school holidays, I appreciate the mother would like to have the boys in her care for the last week of the holidays, however I see no great advantage to S or B. Both parents are perfectly able to organise the children’s books and uniforms for the new term. Accordingly I will order that the week about regime during the Christmas school holidays alternate between the parents with the mother to have the first week in the Christmas school holidays commencing December 2008 and alternate years thereafter.
Regarding extra time for each parent in the Christmas/New Year week, the orders will encourage the parties to resolve this by negotiation but also include a fall back position in the event they are unable to do so. In my view a modified format of the mother’s proposal is sensible, to ensure the children can enjoy that special holiday time with their extended families on both sides.
I am not inclined to extend special occasion time to include other family members’ birthdays, but the parties can consider such arrangements within the general order for the boys to spend further time with each party as agreed. S and B will be living with each parent on a regular basis each week and at times it may be more appropriate for family celebrations to take place when the boys will be living with that parent in any event.
The parties will benefit from attending family dispute counselling, to assist them in developing better communication strategies in the future. The use of a communication book has been discussed and I consider this may also assist the parties.
The father has made an oral application for access to family photographs. The mother is worried that he will not return the photos to her. There is no formal application before the Court but both parties have referred to the issue in their affidavit and I will deal with it accordingly.
Both parties should have photographs of the children across their whole childhood. I will order that the photographs be delivered to the father on the basis that he take responsibility for obtaining copies and return all the original photographs to the mother. The parties may need to record the number of photographs provided, to avoid any further dispute on this topic.
In light of the above reasons I make orders as set out at the commencement of this judgment.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Kelly FM.
Associate:
Date: 18 January 2008
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