WOLFE and WOLFE

[2017] FCWA 115

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: SUPRESSED

CITATION: WOLFE and WOLFE [2017] FCWA 115

CORAM: THACKRAY CJ

HEARD: 4 SEPTEMBER 2017

DELIVERED : 15 SEPTEMBER 2017

FILE NO/S: PTW 2651 of 2014

BETWEEN: MR WOLFE

Applicant

AND

MS WOLFE
Respondent

Catchwords:

CHILDREN - With whom a child spends time - father proposes an equal shared care arrangement while mother wants children to continue living with her - injunction preventing children being left alone with the paternal grandfather - increased risk of the injunction being breached if children spend greater time with the father - mother has proven capacity to provide stable and satisfactory regime for the children - children to continue living with the mother and spend substantial and significant time with the father

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant

Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Wolfe] (“the father”) and [Ms Wolfe] (“the mother”) have been unable to agree the future living arrangements for their young sons, [Child A] and [Child B].

2The father wants an equal shared care arrangement, while the mother wants the boys to continue mainly living with her. The mother wants sole parental responsibility, while the father seeks an order for equal shared parental responsibility.

Background

3The father is aged 41 years and is employed as a [labourer]. The mother is aged 47 years. She is [an office administrator] who is usually employed as a [team leader] in [Company A].

4The mother and father commenced cohabitation in 2004 and married in the following year. At the time they commenced their relationship, the mother had a baby, [F], who lived with them throughout their relationship, and who grew up being treated as the father’s child. F’s father has not seen him since he was one year old, although he has always provided financial support for him. F is now 14 years old.

5Child A and Child B are the only children of the relationship of the mother and father. They are now aged 10 and 8 years respectively. While the parents were living together, the mother had primary responsibility for caring for the children, but the father had significant involvement in their lives. After the separation in 2013, the two boys continued to live in the family home with the mother and F, and spent time with the father. F also spent time with the father, but over the years stopped seeing him as regularly as Child A and Child B.

Current care arrangements for the children

6The mother and the father live in close proximity to each other in [Suburb A]. Their homes are within easy walking distance of the boys’ primary school and they agree the boys should attend the Suburb A Senior High School, which is also not far away. The mother takes the children to school when they are with her (although the children sometimes now walk to school). Her usual workplace is just across the road from the school.

7Pursuant to interim orders, the boys spend each alternate weekend with the father from after school Thursday until before school on Monday. In addition, by arrangement between the parents, they also see the father each Tuesday from after school to 7.30 pm. They also spend roughly half the school holidays with him pursuant to an informal agreement.

8The boys participate in a range of sporting and cultural activities in which they are largely supported by each of their parents. The father’s level of enthusiasm for some of these activities sometimes appears to be less than that of the mother, but this is largely explained by his concern that his fairly limited periods with the children ought not to be taken up by them spending a lot of their time away from him.

9The maternal grandparents live in nearby [Suburb B] and are available to assist the mother in the care of the children as required. For example, when she went to a conference [overseas], one or both of her parents came to Suburb A each day to supervise the children. The mother’s need for assistance during school holidays is now very limited as she is generally able to take leave to supervise F, and the other boys when they are with her.

10The paternal grandparents live in Suburb A, about an eight minute drive from the father’s home. They too are available to assist the father in the care of the children as required. They are a very important part of his proposed care arrangements, as he must be at his work depot in Suburb A at 6:30 am on weekdays (or 7 am in winter). This involves the father having to get the children out of bed when they are with him on school days (he says he gets them up 20 minutes before he has to be at work, although I suspect it might have to be a little earlier than that) and take them to his parents’ home. The grandparents then supervise the children and take them to and from school. The father returns from work in the late afternoon, and is then available to care for the boys in the evening. Most days he finishes between 4 and 5 pm, and on Fridays it is between 3 and 3.30 pm.

The paternal grandfather

11The father’s arrangements for the care of the children are complicated by the fact that an injunction has been in place since July 2015 preventing the children being left alone with the paternal grandfather. It is common ground this injunction should remain in place.

12The mother’s concerns about the grandfather constitute the only real “risk” issue in these proceedings. Her case is that while she is willing for the children to continue to have a relationship with the paternal grandparents, the grandfather represents some risk and the more time the children spend with the father, the greater the risk is likely to be (given the extent to which the grandparents would be involved in helping care for the boys, especially if the father remains in his current employment).

13The mother became aware in 2004 that the paternal grandfather had been charged with what she described as “inappropriate dealings with a male minor”, who she understood was disabled. This information was disclosed by the father’s brother, in the presence of the father, at a very early stage in the parties’ relationship. The mother was led to believe that the grandfather had been given a “suspended sentence” for whatever he had done. The father thereafter steadfastly declined throughout the relationship to provide the mother with any further information concerning this matter. As a result, the mother always ensured the children were never left in the unsupervised company of the paternal grandfather.

14It was only during his oral evidence before me that the father provided some additional information about the grandfather’s offending. Although the father initially said the grandfather had not been convicted, I suggested this could not be so as a penalty was imposed. Although the details were very vague, it is possible the grandfather was acquitted of some more serious charge (the father suggested “penetration” may have been involved), but found guilty of some lesser offence, which resulted in a fine of $3,000 being imposed. The father was at some pains to explain to me that if the minor had been just one month older, there would have been no criminality involved. He also said that the idea of appealing the decision was abandoned because it was less trouble to pay the fine than go through a lengthy and expensive court process.

15The father explained that the grandfather had made friends with the adolescent when he (the grandfather) returned to study, and that he had innocently driven the young person to a park where he was to meet a girlfriend. According to the story apparently given to the father, the grandfather and the young man were “having a cigarette and being silly and all of a sudden the boy started masturbating” while sitting in the car. I can only assume that the grandfather, in some way, became involved in this activity. The young man then apparently “felt embarrassed” about what happened and reported what had occurred to his family, which led to the charges being laid.

16The father failed to call his father to give evidence, notwithstanding he was aware that the mother was making a major issue of the potential risk to the children. Although the father was agreeable to the injunction being continued, I consider it would have been desirable for the grandfather to have been called to give evidence. By this means, I could have potentially learned more about precisely what the grandfather had done, and also make some assessment of the likelihood of him permitting himself to be in the company of children without supervision. Given the father was self-represented, I do not intend to do more than say that the father’s case was not assisted by his failure to call his father to give evidence.

17The undercurrent in the father’s evidence was that that the grandfather’s offending (whatever it might have been) was not very serious, and that the grandfather posed no risk to the boys. The father pointed out that the event occurred a very long time ago (20 years) and that there had been no further offending. He also pointed out that his father had never molested him when he was growing up in his parents’ home. While the father may well be right in considering his father poses no risk to the boys, the mother is entitled to maintain the protective position she has adopted ever since becoming privy to the information about the grandfather. She is also entitled to consider that the father does not appreciate the risk, given for example that the father wrote to her in June 2016, asking “would it be okay if my dad takes the kids to school in the morning sometime? Just in case mum is feeling tired, sore or wants to rest?” In this context it should be noted that the paternal grandmother has been diagnosed with cancer and had a partial mastectomy and I infer that this email was sent during a time when she was recovering from surgery. The mother did not agree to the grandfather taking the children to school alone, but on one occasion in February 2017 the mother was informed by Child A that the grandfather had done so. The mother asked the father about this and I accept he spoke to his father who denied it had occurred. The father accepted his father’s assurance and reported it back to the mother.

18I accept that the grandfather may have taken the boys to school alone as there is nothing to suggest the mother is not a truthful person or that Child A is prone to making up stories. One can readily imagine circumstances where the grandparents had to get the children to school but the grandmother felt too unwell to make the journey and they decided there would be nothing wrong with the grandfather making the journey alone. It is circumstances like this which lead the mother to have concerns about the children spending more time with the father, and therefore the grandparents, than they currently do.

The orders sought by the father

19The orders sought by the father were contained in his application filed in February 2015. Originally, he sought the same orders in relation to F as he did for Child A and Child B. It seems that, at the first hearing, the Magistrate pointed out that it was necessary for F’s father to be given notice of the application. The father elected to discontinue his application insofar as it pertained to F, not because of the need to serve F’s father but because of what I accept was the truculent attitude the mother had adopted in relation to issues concerning F. The father says, and I accept, that he decided it would not be in F’s interests for the mother and father to be involved in ongoing disputation concerning him because things were getting “quite nasty”.

20The father proposed the following orders concerning Child A and Child B:

•the parents equally share parental responsibility;

•the children live with each parent in a week-about arrangement;

•the children spend half of the school holidays with each parent;

•specific orders in relation to the time the children are to spend with each parent at Christmas and on other special occasions; and

•various other orders that were not controversial.

The orders sought by the mother

21In her Response, filed in March 2015, the mother said the children should live with her, but proposed that there be no orders at all because she would “prefer to develop a dynamic parenting plan outside of court”.

22In her amended response, filed in February 2017, the mother proposed that Child A and Child B should spend time with the father each alternate weekend from after school on Friday to the commencement of school on Monday (extending to Tuesday on long weekends). In other words, she was proposing the father have less regular time with the children than he was then enjoying. She also proposed that the children spend time with the father on one afternoon each week during term time, from after school to 7:30 pm “to coincide with extracurricular activities”. The mother otherwise proposed that the children spend time with the father during school holidays for “up to a maximum of 35 nights” each year when the father is on annual leave.

23Apart from seeking the continuation of the injunction preventing the children spending unsupervised time with their paternal grandfather, the mother also sought an order that the father inform her when the children “are not in his direct care, outside of school hours or extracurricular activities, and to provide contact information of the person/s providing care/supervision”. Although the mother also sought an order relating to posting of photographs of the children on social media, that application was abandoned at the trial, the issue having been sorted out to the satisfaction of the mother outside of the Court process.

Credibility and impressions of the parents

24Both parents made a very good impression. Each presented as an upright and law‑abiding citizen with a very clear focus on the best interests of their children. Although they clearly have a number of differences, they nevertheless appear to have a polite and mutually respectful relationship, both inside and outside of the courtroom.

25The father presented as a pleasant, somewhat laconic individual with an excellent sense of humour. Interestingly, he asserted that he is more “maternal” than the mother. While it is difficult to assess in the courtroom environment, the father struck me as being of a fairly gentle and nurturing disposition. He is nevertheless quite determined in his quest to obtain equal care of his children, and his email of 21 October 2014 demonstrates how he is prepared to manoeuvre his position in order to achieve his objective – i.e. he would have been prepared to change his work arrangements if he could have the children overnight but was not prepared to do so if he could have them only from after school until 7:30 pm. I am not, however, as convinced as the mother is that the father’s motivations are related to child support issues. I am satisfied he genuinely wants to spend more time with the children.

26I was impressed by the father’s evidence about the extent to which he has sought to shield the children from any parental disagreements, although I am inclined to accept that he has unconsciously encouraged them to feel that the existing parenting arrangements are not “fair”. I was particularly impressed by his response when the mother most reluctantly gave evidence that it was Child A who had reported that he had been taken to school by his grandfather in breach of the injunction. There were a number of responses available to the father on hearing that evidence, but his immediate one was to say that he would need to speak with his father again about his assurance that this had not occurred. The way in which he gave his response indicated that he neither disbelieved the mother nor Child A but rather was now uncertain about the accuracy of what his father had told him.

27The mother presented as an exceptionally well organised and meticulous person who juggles her work and family commitments with efficiency and skill. Her parents are both [health professionals] and she clearly looks to them for guidance and emotional support, as she does with her brother (who accompanied her to Court and seemed to be keeping a very careful transcript of the proceedings). Perhaps because of the nature of the work she does, the mother appeared somewhat more focused on “risk” issues than the circumstances suggested might be appropriate. For example, she was only prepared to give evidence about Child A’s disclosure concerning a possible breach of the injunction after I assured her that I could not see any basis on which this would make Child A a “target”, as she feared.

28Both parents were self-represented. Both did an excellent job in preparing and presenting their case. However, the mother’s affidavit was hypercritical of the father in that she referred to a very large number of seemingly minor things in order to advance her case. In a number of instances she claimed that the father had a “history” of doing something when, in fact, it turned out that she was using “history” in a medical sense to indicate that the event complained about had happened at least once. In adopting this stance, she led the father to believe that she had a very poor opinion of him as a parent, hence his obvious relief when she did acknowledge in the course of the hearing that she accepted that he was, in fact, a good and loving father.

29Overall, I consider the parents are to be commended for the respectful way in which they generally treat each other and the effort they have made to provide a good life for their children, who the mother described as “well-adjusted, bright, social children”.

Applicable law

30These proceedings come under the Family Law Act 1975 (Cth) (“the Act”), which makes the boys’ best interests the paramount consideration.

31In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:

(a)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;

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

32In determining the orders most likely to be in a child’s best interests, the legislation mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision, I am required to apply a presumption that it is in the boys’ best interests for their parents to share parental responsibility. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.

33The allocation of parental responsibility does not govern the time the boys will spend with each parent. However, if I make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time” with each parent would be in the boys’ best interests. If either alternative is in their best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.

34In determining what is in the boys’ best interests, I must consider the matters in s 60CC of the Act, which are divided into “primary considerations” and “additional considerations”. The dichotomy between the “primary” and “additional” considerations has been considered in many judgments of the Full Court, which have also discussed the significance of Parliament having described just two of them as being “primary” considerations. Those judgments adopt the analysis of former Justice Richard Chisholm, who said in one of his many scholarly papers:

It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.

35It is within this legal framework that I must determine this case.

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

36The parents agree it would be very much to the advantage of the boys if they were to have a meaningful relationship with the other parent. I have no doubt that the children enjoy such a relationship with both parents and will continue to do so regardless of whether I make orders as proposed by the mother or as proposed by the father.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

37There is no suggestion that either parent would knowingly expose the children to either physical or psychological harm. The only matter of relevance under this heading is the concern expressed by the mother about the paternal grandfather. I have referred to this issue already and conclude that it is entirely appropriate to continue the injunction to which the parents have consented preventing the children from being in the unsupervised company of the paternal grandfather. While I am inclined to the view that the risk is probably not great, it is nevertheless a risk not worth taking. The evidence suggests the possibility that he may have a sexual interest in adolescent males which has resulted in him having been found guilty of committing a criminal offence. I accept the mother’s assessment that the more time the children are with the father, the greater the possibility that circumstances will arise in which the children will find themselves alone with the grandfather.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

38Although the father sought an order in his application for a report to be obtained concerning the children’s views, no order was made for such a report. According to the mother, the Magistrate who conducted the Readiness Hearing deemed it inappropriate.

39The father claims that he has not attempted to influence the children’s wishes but says they have made statements to him indicating that they regard the current arrangement as “unfair” and would prefer to spend equal time with him. The mother says the children have expressed similar sentiments to her, but only on their first day back after visiting their father and that otherwise they never indicate any concern about the current arrangement.

40As I explained at the hearing, I am unable to determine the views of the children on the basis of the evidence currently available. Even had there been an independent report, any expression of wishes or views on the part of the children would not have been decisive, given their relatively young ages and the possibility of inadvertent influence from the parents. Doing the best I can on the limited information available, I am inclined to consider it likely that the boys would ideally like to spend more time with their father, but on the other hand are not unhappy with the amount of time they currently spend with their mother.

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

41The children appeared to enjoy an excellent relationship with both parents and with everyone who is significant in their lives, including their maternal and paternal grandparents.

(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child;

42I am satisfied that both parents have sought to participate in making decisions about the children and have attempted to spend as much time with them and to communicate with them as much as practicable.

(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

43Notwithstanding the mother’s criticisms of the father, he has largely fulfilled his legal obligation to maintain the children, albeit I accept that the major proportion of the burden of maintaining the children has fallen on the mother.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

44If I make orders as proposed by the father, they will obviously spend more time with him and his family and less time with the mother and probably less time with her family. If the father remains in his present employment, the children would have to get out of bed very early much more often in order to be dropped off at their grandparents’ home. While the father made light of this in his evidence, I anticipate that this arrangement would become very tiring for the boys and they would probably begin to resent it, especially as they get older.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

45There is no practical difficulty or expense associated with the children spending time with or communicating with either parent.

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

46There is no issue concerning the capacity of the parents to provide suitable accommodation for the children and to provide adequately for their day to day needs.

47I am satisfied that each parent would do their utmost to provide for the children’s emotional and intellectual needs. Nevertheless, having had an opportunity to assess the parents in court, I have formed the view that the mother has a somewhat greater capacity than the father to provide for the children’s day to day care and supervision including, but not limited to, making suitable arrangements for their education. This is in part due to the personal attributes of the parents, but also in part to the fact that the mother’s work arrangements are far more conducive to caring for the children than the father’s arrangements.

48Although the father said he would seek alternative employment in the event he was successful in his application to the Court, I accept the submission of the mother that this is more easily said than done (noting the father has been in his current job since April 2016). The father accepted that the fact that he currently has work arrangements which are not what he called “kiddly friendly” was because of his incapacity to obtain such employment when he lost his last job, although he said he regarded his current work as only temporary and did not expect it would take so long for his case to come to Court. The father also said he lost his last job because he had to keep changing his hours to suit the arrangements for the children (albeit he blamed the mother for this because she would not commit to regular arrangements).

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

49There is nothing additional to be said under this heading.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

50This factor is not relevant.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

51I consider that both parents have demonstrated an excellent attitude towards the responsibilities of parenthood. Although the parents have disagreed on a number of matters since their separation, they have, by and large, made a good attempt to conceal these matters from the children and to encourage them to enjoy a good relationship with the other parent.

(j)any family violence involving the child or a member of the child’s family;

52There are no issues of family violence.

(k)if a family violence order applies …

There have been no family violence orders.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

53I consider that the litigation has been damaging to the relationship between the mother and the father as it has encouraged them (but particularly the mother) to make allegations about the other parent notwithstanding that each actually holds a reasonably positive view of the other. Any further litigation would not be helpful to them in working to provide a good life for the children.

54The father said in his affidavit that if he is unsuccessful in obtaining equal shared care now, he will continue to seek such an arrangement in the future, resulting in further litigation. This may be so, but it will be necessary for the father to demonstrate a sufficient change in circumstances before he will be permitted to litigate the matter again if he is unsuccessful in obtaining what he wants now. Clearly, I cannot rule out the possibility that there will be further litigation in the event that I do not make the orders the father currently seeks. On the other hand, I could not rule out the possibility that there would be further litigation in the event that I did make the orders the father seeks and the children become discontented with that arrangement.

55Overall, I do not consider this factor to be one of much significance.

(m)any other fact or circumstance that the court thinks is relevant.

56The fact that the children have grown up with F as their half-brother is a matter of considerable significance. While I regard it as being most unsatisfactory that F has not spent the same time with the father as the other two boys (for which I consider the mother must take responsibility), I must face the reality that this has occurred and that it is unlikely F will regularly spend time with the father in the future. Accordingly, were I to make orders as sought by the father, the two younger boys would spend considerably more time away from their half-brother than they would if orders were made along the lines proposed by the mother. There was no evidence to suggest that the boys enjoy anything other than a good relationship with each other and I am inclined to the view that it would be better if they spent as much time living together as a family unit as possible.

Parental responsibility

57There is no doubt that the presumption in favour of an order for equal shared parental responsibility applies given the absence of allegations of violence or abuse.

58Although the mother sought an order for sole parental responsibility, she was unable to articulate any convincing argument as to why this would be appropriate. Indeed, to the mother’s credit, when I explained to her some of the legal issues surrounding parental responsibility, she appeared to accept that there was little to support the making of the order that she was seeking. In my view, in agitating for an order for sole parental responsibility, the mother was acting under a misapprehension about the connection between the making of such an order and the allocation of the children’s time between each parent.

59As both parents readily conceded, they have a demonstrated capacity to come to sensible agreements in the best interests of the children. While each of them could be trusted to make good decisions on their own about long term issues affecting the children, I consider that it would be in the best interests of the children for the parents to share responsibility for making the long-term decisions. They are in regular and respectful communication about the children and there was no evidence that they had ever been in serious disagreement about any major issue. Even in instances where they approached a topic from a different viewpoint (for example the need to protect the children from the paternal grandfather) the matter has been resolved by one party sensibly giving in.

60I therefore intend to make an order for the parents to share parental responsibility. I do not intend to make the orders sought in paragraphs 2 and 3 of the father’s application as these would do nothing more than state the legal effect of an order for equal shared parental responsibility.

Equal time

61As a result of making an order for equal shared parental responsibility I must consider making an order for the children to spend equal time with each parent. I need to consider this option anyway as it is the outcome the father seeks.

62Although I have seriously considered this option, given the many benefits I can see to the children from them spending more time with their father, I have determined that a different outcome would be more likely to promote their best interests. The mother has a proven capacity to provide a stable and satisfactory regime for the children and her work commitments are more conducive to the well-being of the children than the father’s current work arrangements. In particular, while living with the mother, the children do not have to be got out of bed at what for them would be a very early hour and taken to grandparents to be cared for prior to school. Although the father would hope to change his current arrangements, there was no evidence that could satisfy me that he would be able to secure the type of flexible employment that the mother enjoys. I also consider it somewhat more likely that the mother would make slightly more suitable arrangements than the father for their day to day care and education.

63Although I am not persuaded that the paternal grandfather poses a serious risk to the children, he nevertheless does pose some risk. I accept the mother’s argument that the more time the children spend with the father, the greater the likelihood that at some point they will be left in the unsupervised care of the grandfather, notwithstanding the injunction. While not a major factor in my decision, it is nevertheless one further matter which persuades me that the children should spend the majority of the time living with their mother.

Substantial and significant time

64The proposals made by both parents could properly be described as providing the other parent with substantial and significant time with the children.

65The mother wishes to change the current regime by reducing the father’s time with the children on a regular basis so that they are with him only from after school on Friday to the beginning of school on Monday each alternate weekend, whereas they have been accustomed to spending the Thursday night with him as well. The mother says her proposals do not constitute a reduction in time overall, because she now proposes a formal order that would guarantee that the father will spend not less than 35 nights per annum with the children during school holidays whereas the current order does not make any provision for holidays. The reality, however, is that the children have been spending significant periods of time with the father during school holidays by arrangement and, in my view, the mother’s proposal does represent a reduction in the children’s time with the father.

66I am not persuaded that the mother’s proposals about the Thursday night advance the best interests of the children. In my view, the current arrangement provides the father with a (slightly) greater opportunity to participate in the children’s daily life and in particular their education/homework by having them with him on one additional school night each fortnight. At the very least, the current arrangement allows the children a greater period of time with the father, so they can settle into his care before it is time to return home to the mother.

67The mother’s proposals in relation to school holidays would limit the father’s time to 35 nights a year and only in the event that the father is himself on leave so that he can care for the children personally. I am not persuaded that the father’s time should be restricted in the manner the mother proposes, even though I accept that her reasons for seeking such an order are genuine and child focused. In my view it would be in the children’s best interests to spend equal amounts of time with each parent during school holidays. I am satisfied that each parent would make appropriate arrangements for the care of the children during their time with them if they had to work during part of the holidays, although I am satisfied they will both do what they can to maximise their time with the children during school holidays. In arriving at this decision, I acknowledge that the children might spend slightly more time with the paternal grandparents than would otherwise be the case.

68I do not intend to make the order the mother seeks about the father having to keep her informed about various matters. I am satisfied each parent can be relied upon to inform the other about important matters concerning the children. I am not satisfied, especially as the boys are now somewhat older, that it is necessary for the mother to receive quite the level of detailed information she has required from the father in the past.

69I also do not propose to make the orders sought by the father at paragraphs 12 to 15 of his application as I do not consider them to be necessary in the circumstances.

Orders

70For these reasons, I propose to make the orders set out below. The parents agreed during closing addresses that it was unnecessary for me to make any specific orders regarding Christmas, birthdays and other special occasions as they have always been able to sort these matters out between themselves.

71In making the injunction about the grandfather I wish it to be understood (picking up on an example given by the father in his oral evidence) that I do not consider the injunction would prevent the paternal grandmother from going to the toilet if the grandparents are out with the boys in a shopping centre, any more than it would mean she could not go to the toilet or take a shower at home. In some other cases, such rigidity might well be demanded, but given the ages of the boys and the level of risk here, I do not consider that this is required. The injunction would, however, prevent the children being left in the home while the grandmother is away and also prevents the grandfather from being in a vehicle alone with the boys.

72The only orders I will make are these:

1.All existing parenting orders be discharged.

2.The mother and father have equal shared parental responsibility for the children [CHILD A] born [in] 2007 and [CHILD B] born [in] 2009.

3.The children live with the mother.

4.The children spend time with the father as follows:

(a)each alternate weekend from after school on Thursday until the commencement of school the following Monday (or the commencement of school on Tuesday in the event of a long weekend);

(b)each Tuesday during the school term from after school until 7:30 pm; and

(c)for one half of school holidays at times to be agreed between the parents.

5.The father be restrained and an injunction granted restraining him from allowing the children to spend time with the paternal grandfather unsupervised.

I certify that the preceding [72] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate
15 September 2017