Wheeler and Wheeler

[2016] FCCA 148

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHEELER & WHEELER [2016] FCCA 148

Catchwords:
FAMILY LAW – Parenting – time that child aged 13 years should spend with each parent.

Legislation:

Family Law Act 1975, ss.60C, 60CC, 61DA, 61DAA

Goode & Goode (2006) FLC93 – 286
R v R (2000) 25 Fam LR 712
MRR & GR (2010) 240 CLR 461

Applicant: MR WHEELER

Respondent: MS WHEELER

File Number: PAC 3315 of 2013

Judgment of: Judge Newbrun

Hearing dates: 25, 27 May 2015 and 1 June 2015

Date of Last Submission: 1 June 2015

Delivered at: Parramatta

Delivered on: 12 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Morley

Solicitors for the Applicant: Brazel Moore Lawyers

Counsel for the Respondent: Mr Weaver

Solicitors for the Respondent: Shepherds The Family Law Specialists

ORDERS

1. That the parents shall have equal shared parental responsibility for the long term care, welfare and development of the children, X born (omitted) 1998 and Y born (omitted) 2002.

2. That the child X live with and spend time with the parents in accordance with his wishes.

3. That the father spend time with Y as follows:

   (a)During school terms, each alternate weekend from after school Friday until commencement of school Wednesday, commencing the first weekend after the date of these Orders.

4. That during school holiday periods Order 3 is suspended and Y will spend time with each parent as follows:

   (a)For one half of the school holiday periods by agreement and absent any agreement, with the father for the first half in odd numbered years and the second half in even numbered years;

   (b)For one half of the school holiday periods by agreement and absent any agreement, with the mother for the first half in even numbered years and the second half in odd numbered years.

5. Notwithstanding Order 4, Y will spend time with each parent for Christmas as follows:

   (a)With the father from 3pm Christmas Eve until 2pm Christmas Day commencing 2016 and each odd year thereafter and from 2pm Christmas Day until 3pm Boxing Day commencing 2017 and each even year thereafter;

   (b)With the mother from 2pm Christmas Day until 3pm Boxing Day commencing 2016 and each odd year thereafter and from 3pm Christmas Eve until 2pm Christmas Day commencing 2017 and each even year thereafter.

6. Notwithstanding Order 4 and failing agreement between the parents, Y will spend time with each parent for the following occasions:

   (a)At Easter, with the father commencing 6pm Thursday until 6pm Monday commencing 2016 and each even year thereafter.

   (b)At Easter, with the mother commencing 6pm Thursday until 6pm Monday commencing 2017 and each odd year thereafter.

   (c)On Y’s birthday from 3pm to 7pm with the party with whom Y is not residing that day.

   (d)On each parent’s birthday from 3pm to 7pm should Y not be residing with that parent on that day.

7. If Father’s Day is a day when Y is spending time with the mother then such time shall be suspended and Y shall spend time with the father from 8am until 8pm.

8. If Mother’s Day is a day when Y is spending time with the father then such time shall be suspended and Y shall spend time with the mother from 8am until 8pm.

9. All changeovers are to occur as mutually agreed by the parties and failing agreement after school at (omitted) College and (omitted) Primary School.

10. That both parties be restrained from moving from the (omitted) area without the written consent of the other party or by Order of the Court.

11. That each party do all such things, sign all such instruments, documents, authorities and the like to ensure that:

    (a)Each party be at liberty to communicate directly with Y’s pre-school/school teachers and other pre-school/school authorities as to Y’s progress at pre-school/school and any problems being experienced by Y and to enable Y’s pre-school/school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;

    (b)Each party is at liberty to communicate directly with any treating professional as to any health related treatment being undertaken by Y without necessarily first referring to the other parent and both parties are to keep the other party informed of any specialist medical treatment or hospitalisation of Y.

12. Each party is to keep the other informed of all sporting, religious, cultural and educational activities in which Y is involved from time to time.

13. That each party at all times keep the other informed of all medical and dental and other health related treatments being undertaken by Y and the identity of the treating professionals.

14. That the parties notify each other of their place of residence and telephone numbers as it stands from time to time, within 14 days of having changed their place of residence and telephone numbers.

15. That either party is to allow the other party to have liberal telephone contact with Y within reasonable hours.

16. That the parties be restrained from denigrating the other party or the other party’s family in the presence or within hearing of Y.

17. That each parent ensure when the child Y is in their care, that she is taken to her extracurricular activities, including sporting activities punctually.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3315 of 2013

MR WHEELER

Applicant

And

MS WHEELER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was the final hearing of parenting proceedings between the father born (omitted) 1971 now aged 44 years and the mother born (omitted) 1969 now aged 47 years.

2. The parties married on (omitted) 1995.  They had three children, Z who was born on (omitted) 1996, aged 19 years, X, born on (omitted) 1998, aged 17 years and Y born (omitted) 2002, aged 13 years.

3. The parties separated under the one roof on 20 January 2011. In December 2014 the father finally vacated the home at (omitted).

4. In February 2015 the child Z commenced living with the father.

5. In early March 2015 the child X commenced living in a shared care arrangement between the parties, the father asserting it was about 65% of the time with him.

Parties’ proposals

1. The father sought orders at the commencement of the hearing, inter-alia, that the parents have equal shared parental responsibility for the children X and Y; that the child X live with and spend time with the parents in accordance with his wishes; that the child Y live with the parties in an equal shared week about arrangement with changeover to occur after school each Monday (case outline of father, Exhibit ‘B’).

2. Following the evidence of the Family Report writer, the father’s counsel amended the father’s proposal in respect of the child Y, such that Y spent time with the father for five nights per fortnight, being from Thursday after school until Tuesday, commencement of school, during school term times.

3. The mother sought orders at the commencement of the hearing, inter-alia, that the parents each have equal shared parental responsibility for the children X and Y; that the said children live with the mother; that the father spend time X, on a week about basis with changeover to occur on Sunday at 5PM, commencing the first weekend after the date of these orders, subject to the applicant father taking X to his sporting and extracurricular activities; with Y, during school terms, each alternate weekend from after school Thursday until Sunday at 5PM, commencing the first weekend after the date of these orders, subject to the father taking Y to her sporting and extracurricular activities (Mother’ s Minutes of Orders sought at final hearing; Exhibit ‘C’).

4. At the commencement of the mother’s submissions, Counsel for the mother informed the Court that the mother would consent to an order that Y spend four nights per fortnight with the father. For practical purposes, it was submitted on behalf the mother, that the child Y should go into the father’s care after school on Friday.

Material relied upon

1. The father relied on his affidavit filed 1 May 2015.

2. The mother relied upon her affidavit filed 11 May 2015.

3. Both parties agreed to the tender of the Family Report dated 18 February 2015 prepared by Ms A, Family Consultant (Exhibit ‘D’).

4. Both parties were cross-examined and the Family Consultant.

5. The Court has had regard to the affidavits, the oral evidence and the documents tendered in evidence, and submissions.   

Evidence

1. Both parties since the birth of the children have been actively involved in the care and day-to-day lives of the children.

2. The mother took about six months maternity leave after the birth of each child in order to care for them. The father, when he was home from work, helped the mother with childcare.

3. The children went to day care and later (omitted) primary school.

4. The child Z has completed high school and is currently studying (omitted) at University. Since February 2015 he has been living full-time with the father.

5. According to the father, Z is a positive role model for the other children and demonstrates a very caring nature.

6. According to the father, all the children enjoy each other’s company. The father’s brother Mr R enjoys a warm relationship with the children.

7. According to the father, X is a predominantly shy child and requires positive reinforcement to help him achieve his potential in his schooling, sporting and social life. According to the father, X is living with the parents in a week about 50/50 shared care arrangement, changing over on Sundays.

8. According to the father, Y is a bright, dedicated and articulate young girl. She is a good at sports. She has a wide circle of friends and communicates well with them.

9. In November 2014 the child Y told the father that she would like to spend equal time with her parents and would like to go where X goes. Since December 2014, when the father moved out of the home, at least initially, Y did spend more time with the mother and did not move between houses like X did. But over time as the months went on she started increasing the amount of nights she spent with the father.

10. Both X and Y have told the father that they would prefer that the changeover between homes be on a Sunday so that it doesn’t disrupt the school week.

11. The father runs his own business and his work hours are flexible. He conducts a (omitted) business. His taxable income was $50,000 in the 2014 tax year.

12. The mother works full time as a (occupation omitted) earning about $1,800 per week gross.

13. The father lives about 15 minutes from the schools that X and Y attend and ten minutes away from home. From the father’s home in (omitted), the children are able to catch a bus to and from school.

14. Neither parent pays any child support.

15. As at trial date, the father had been seeing his new partner Ms T for about 13 months. The children enjoy a warm relationship with her.

16. According to the father, the mother exhibited anger on a daily basis for most of their relationship.

17. According to the father, the child Y spends almost a 50-50 shared care arrangement with both parents but occasionally spends a night at the mother’s during the father’s week. This has been the case most weeks.

18. The child X will be in Year 12 in 2016.

19. The child Y will be in Year 8 in 2016.

20. According to the mother, she has attended to the greater part of the children’s routine and personal needs from their birth. As a (occupation omitted) at (employer omitted), she has been able to structure her work commitments during school days and during school holidays around the children’s needs and she can continue to do this.

21. The mother during the children’s school holidays usually cared for and supervised the children. The father would be working during the school holiday periods.

22. The father is a keen sportsman. He played (hobby omitted) for a local club team for a number of years when the children were young. This would involve games on weekends when the mother would look after the children. The father also assisted the children in learning to play (hobby omitted) and was also a (hobby omitted) coach for X’s team for a period. In some years, the father has also played (hobby omitted) in addition to playing (hobby omitted), often having two games on weekends. In many weeks he had training two evenings a week.

23. The father worked for (employer omitted) from 2003 to 2013. In this 10 year period, he worked some weekend shift work when the mother would take the children to their (hobby omitted) games and other activities and otherwise cared for the children. The father had weekend shift work which occurred about every sixth weekend. The father also worked night shifts for (employer omitted).

24. When the child Y was aged five years, the mother enrolled her in (hobbies omitted) classes. She took her to these classes for two years. She then commenced (hobby omitted) and the mother took her to these activities. In 2010, Y became involved in her (hobby omitted). The mother took her to training each week and also to four competitions each year. This activity continues. Y is a musical child and the mother has paid for her (omitted) lessons and taken her to and from practice and performances. The mother has also paid the costs of (omitted) lessons. Y commenced playing (hobby omitted) in kindergarten and continued through primary school. The mother took her to and from training and games. Some years the mother was the coach.

25. According to the mother during the relationship she was the primary caregiver to the children and homemaker. She did the majority of meal preparation and shopping.

26. As a (occupation omitted), the mother assisted the children with learning to read and supervising their homework. When the children were younger, the mother would attend primary school activities including reading groups, canteen duty, school fetes, helping create school props and supporting the graduation events.

27. The child X attends (omitted) College as a student.

28. Y commenced Year 7 in 2015 at (omitted) College, (omitted) and will also attend (omitted) College for years 11 and 12 (when girls are able to attend).

29. Living with the father and his new partner Ms T, is the latter’s daughter Ms M, aged 30 years.

30. As the mother works at (employer omitted), in the past she has driven Z and X to school when they did not catch the bus. On some occasions she would drive Y or she would walk to her primary school. The mother has continued to drive X to school. Since the father moved out of the home, the mother has continued to drive Y to school on some occasions, or she catches a bus from near the home. Y has said to the mother that she has to get two buses from the father’s place. She has told the mother that sometimes she misses the connecting bus. On one occasion Y told the mother that she had missed a connecting bus and had no phone credit. She had to walk from there to (omitted) to use their Wi-Fi. The father told Y to start walking to (omitted) College. After two hours of walking, the father picked up Y and took her to school.

31. After the father ceased to reside in the home in early 2015, the child Y did not spend any overnight time with him during Term 1 until early March 2015.

32. On a number of occasions, the children have been with the father and have called the mother requesting they be picked up, for example, so that the mother could take them to (hobby omitted).

33. There have been occasions when both X and Y have attended on the mother either at school or at home to help them with their homework on days when they are otherwise living with the father. On 1 May 2015, Y came home to the mother’s residence when she was otherwise staying with the father and told the mother that she could not find her (hobby omitted) boots.

34. The child Y has expressed some concern to the mother about her difficulties travelling to her school by bus from the father’s home.

Oral evidence

1. The father gave oral evidence.

2. The father initially stated that he can communicate effectively with the mother. Then he stated that on some days communicating was difficult. He stated that the mother has problems communicating with him.

3. The child Y does (hobby omitted) twice a week. She is also involved in state championships and national championships. Y has been doing the (hobby omitted) since 2010. The father has only been to one event.

4. The father permitted the child Y to set up a Facebook account when she was 10 years old without checking how old the user had to be to use a Facebook account. He did not check with the mother nor tell her that he was proposing to set up a Facebook account for the child.

5. The father has stated to the mother that she suffers from bipolar in front of Y.

6. The father stated that since leaving the home in December 2014 to the date of trial he could count on the one hand the number of face-to-face conversations that he had had with the mother. He had communicated with the mother by email and text messages; the father stated there had been disagreements but not conflict. The father would try and telephone the mother but she didn’t answer his calls, so he would always leave a text message, or if it was really important, then an email as well. There had been disagreements over change overs. There had been disagreements over which parent goes over to the other’s house if a child has left something at the other’s house.

7. The father stated that the mother has a problem with face-to-face communication.

8. About two weeks prior to the trial Y was due to spend a week with the father but it did not occur. The father rang Y. He did not ring the mother. Y told the father that she had NAPLAN testing on.

9. The father stated that when he left the home in December 2014, he still insisted on keeping the week about arrangement. He stated that X is now in a good routine and the week about arrangement is working for him. As to the child Y the father stated that she was getting there slowly and it was taking her a bit more time. He stated that the longer time goes on, the more time Y spends with him.

10. The father’s new partner Ms T is aged 49 years.

11. In re-examination the father stated that he had accompanied Y to her other sporting activities apart from (omitted).

12. The mother gave oral evidence.

13. The mother stated that X began the week about living arrangement with the parents in about March 2015.

14. The Mother stated that there had been no face-to-face communications with the father since he moved out from the home in December 2014. She stated that it had been years since she had had a genuine face-to-face conversation with the father.

15. She stated that communication was counter-productive. She stated that they do not get anywhere in their communication. She stated that it is very time-consuming and it hurts her and she sees how much it hurts the children. It doesn’t work. She stated that presently no form of communication works.

16. The mother stated that electronic communications between the parties is very lengthy. A lot of time goes into it. The mother feels that she is getting accused of a lot of things in amongst it. She stated that the electronic communications bring up a lot of triggers in her, being the history of being falsely accused of things.

17. She does not believe the electronic communications are productive.

18. The mother stated that if the children’s safety is involved then the parties will communicate by telephone.

19. The mother stated that she is not at her best when she has to communicate face-to-face with the father. She does have a physical reaction when it takes place; the mother stated it was like:

    You know that someone knows you so well that they know how they can hurt you.

20. The mother confirmed that she had found some difficulty in dealing with the father because of the history of their relationship.

21. The mother referred to change overs when she drives to the father’s home and parks at the curb and waits for the children to make their way to her car.

1. The mother confirmed that the father’s new home is about 8.5 km from her home.

2. The court asked the mother what her objections were to the father’s equal time proposal for Y. The mother stated that:

   It’s becoming increasingly apparent to me that Y is not comfortable spending as much time with Mr Wheeler and Ms T in that home. She is making it very, very clear to both Mr Wheeler and I that her preference is to be with me. Just yesterday in the car, she said to her brother,

   “Dad just doesn’t listen to me. I even wrote it on the whiteboard.”

   And she was referring-and I don’t want to misquote her, but about a month ago she wrote,

   “I think Mum, if I think about four weeks, I think I could have one week with dad.”

   And then more recently she said to me,

   “I think I have changed my mind again, Mum.”

   And by that stage I had already written the affidavit, and I said,

   “Well, sweetheart, how could you-could you cope with Thursday night, Friday night, the Saturday night, and the Sunday night?”

   And she said,

   “I don’t want to be-I want to be back with you on Sunday night so I can get organised for school.”

3. The mother related a conversation between X and Y the day previously when X was putting pressure on Y to have a week about arrangement with the father. The mother stated, inter-alia, (X) said to her:

   “Last time you didn’t come home you said it was because of NAPLAN.”

   And Y got quite emotional, and she said,

   “Yes. Because I have tried to talk to dad, and he won’t listen. I have even put a note up on a whiteboard and counted out the weeks.”

   The mother further stated:

   “And she referred to a conversation that she had with me about a month, a month and a half ago about how she was thinking in her head that-she is trying to make school work for her. She is trying to make being with her dad-she wants to be with her dad, but she is factoring in school. And she is dealing with a new environment, and she is trying to make it work. And she is-what’s upsetting her the most at the moment is she can’t communicate with her dad.”

4. The mother stated that Y has been changing her mind in 2015 about when she wants to live with each of her parents although it was more less than more with the father.

The Family Report dated 18 February 2015

1. The Family Report interviews were held on 12 December 2014.

2. The Family Report writer spoke to the father on 11 February 2015. He stated that since he had moved Y had probably been living with him for 50% of the time during the school holidays and three to four nights each alternate week since school had resumed.

3. The father told the Family Report writer that the impact on the children of he and the mother continuing to cohabit post separation was that the children saw “a lot of negative stuff”, including a lot of verbal conflict with “harsh words” and “a lot of swearing”. The father said that the impact of the parental conflict on Y had been that she thought that the parent’s way of relating was “normal” and that if Y became angry or is being disciplined she would swear, including saying the “F word”. He said that the impact on X may be that it had “kept him in his shell a bit” and explained that he was a shy and quiet child.

4. The father had little to say to the writer about the mother that was positive.

5. The father stated to the writer that the mother had kicked him once while he was urinating in the toilet and the police were called. The father stated that since the separation the mother would frequently shout and swear at him, including in the presence of the children.

6. The father stated that there had been an unpleasant incident between the parties at Y’s hairdresser when the mother requested the father to reimburse the cost of the hair appointment.

7. The father stated that both parents had a close relationship with Y. The father stated that he considered that X was closer to him than the mother.

8. The father stated that the mother was more tolerant of a messy household then he intended on doing. He stated that the children were a bit of a “tornado” and it would take some adjustment for them to get used to how he and his new partner would run the house.

9. The mother told the writer that she wanted the children to live with her during the week so that she could ensure that they kept on top of their homework and provide them consistency.

10. The mother told the writer that she proposed that X’s living and spend time arrangements be as per his wishes and that Y live with her and spend time with the father for 4 nights per fortnight.

11. The mother told the writer that since the father left the home she had not communicated with him about the children’s living arrangements; rather the children communicated with the father in that respect.

12. The mother told the writer that she felt she could not communicate with the father.

13. The mother told the writer that she considered it important for the children to have the same living arrangements. She said that this was so that they could “support each other” and explained that when the children “play together they shine”.

14. The mother told the writer that she had always viewed herself as the children’s “main carer”.

15. The mother had little to say about the father that was positive and referred to alleged manipulation by the father.

16. The mother told the writer that she enjoys a “mother-daughter” relationship with Y.

17. The child Z told the writer that his parents rarely spoke to each other despite living in the same house. He said that they would “talk through us kids” and explained that the parents would send each other messages through the children. He said that his parents had been engaging in verbal conflict for many years.

18. X told the writer that his parents did not really communicate much and if they did talk they tended to fight.

19. X told the writer that once his parents ceased living together he would like to live one week with his mother and one week with his father. He said that he liked his parents equally and did not want to have to choose one parent over another. He said that if it was not possible for him to live in a 50-50 care arrangement then he would prefer to live with his mother and spend as much time as possible with his father. He said it would not be his preference to live primarily with his father.

20. X told the writer that he was closer to Y than Z and that it was his priority to remain in the same care arrangement as Y.

21. Y told the writer that her parents would shout at each other. She stated that sometimes the parents get her in the middle of their conflict and that they would make her the messenger between them.

22. Y told the writer that she wanted to live in the same house during the week and that she did not want to have to manage moving books and assignments between the two houses. She said that she did not want to keep on swapping houses all the time. She suggested that she could live with her mother during the week and then with her father from Friday until Monday each week. She would want to spend time with both parents during weekends.

23. Y stated she was not excited about her father’s new residence and that she perceived it was too far from her school and this impacted on her desire to spend midweek time with him.

24. Y told the writer that it would be her preference to live more with her mother than father because “she is more there for me”. She stated, however, that it was her strong preference to remain in the same living arrangements as X and that she would prefer this even if it meant that she needed to live in a week about arrangement.

25. In the writer’s “Evaluation”, she stated that X and Y appear to have close relationships with each parent. She stated that both children appeared to indicate a preference towards living with the mother.

26. The writer stated that the children’s presentations on the day of the interviews suggested that some weight should be put on their views, however, their arrangements since the father moved from the home is also likely to be an important indicator of their views.

27. The writer stated that X and Y appear to have a close relationship. It was likely to be in their best interests if the amount of time that they live together is maximised. However, X was of an age and stage of development where it is likely to be best for him to have orders that permit him to make choices about his arrangements.

28. The writer stated that both parents appear to have a very poor opinion about the other parent and did not appear to value their contribution to the children’s lives. The writer stated that the mother appeared to have played the primary role in the day-to-day care of the children to date. She spoke proactively about the children’s routines and education and appeared to have greater knowledge of the children’s arrangements than the father. Both children appeared to indicate that they felt able to rely on the mother. It appeared that the mother had been consistently available to care for the children post separation. The writer noted that the father had been highly involved in the children’s sporting pursuits.

29. The writer stated that the parents had both put the children’s development and well-being at significant risk by exposing them to parental conflict for many years, including whilst separated under the one roof.

30. The writer stated it was essential that both parents do everything they can to protect the children from any further explicit or less obvious conflict.

31. The writer stated that the information provided in her assessment suggested that the parents had some capacity to communicate about the children.

32. The writer stated that although an equal shared care arrangement had not been trialled since the parents ceased cohabiting, it would appear that the history of the parental relationship since separation, both whilst they were cohabiting and in the brief period they have been living separately, suggested that a week about arrangement was unlikely to be in the children’s best interests. Furthermore, both parents indicated a desire to allow the children’s views to influence the parenting orders and it was not clear that the children wanted to live in a week about arrangement.

33. The writer stated that if the children are not to live in a week about arrangement, it is important that that they have the opportunity to spend significant and substantial time with the father. Furthermore, it is likely to be in their best interests to have both weekend and midweek time with both parents.

34. The writer stated that it was particularly important for Y, due to her relatively young age and stage of development, to not be burdened with managing and negotiating her living arrangements. She was at risk of being given more responsibility than was suitable because she had significantly older siblings and parents who were unwilling to manage the discomfort of communicating with each other.

35. The writer stated under the heading “Recommendations” that X live and spend time with each parent as per his wishes; and for Y to live with the mother and spend time with the father for five nights per fortnight and half of each school holiday period.

Oral evidence of Family Report writer

1. On behalf of the father, the writer was asked about her comment in the report that the mother had told her that she felt she could not communicate with the father. The writer stated, inter-alia:

   The impression of the mother’s comments made to me was that she found it extremely difficult. I guess there’s- there was two elements: one that it was extremely difficult and that would be consistent with her comment saying it caused a lot of hurt in terms of the emotional toll that may cause… The general comments that she was making also seem to be suggesting that the success of any kind of attempted communication was very limited.

2. The writer stated that she would recommend attention be given by the Court to trying to ensure that all the children but preferably X and Y, are spending a significant and preferably as much time as possible together whilst noting that was one factor in a number of other factors. The writer stated that X was at an age that he will start needing to do his own thing and his availability to be spending that time with Y will decrease as time goes on.

3. The writer stated that her reference in her report to the term substantial and significant time was something consistent with the recommendations in the vicinity of five nights per fortnight. She was drawing the distinction between week about and weekend and she was talking in the vicinity of around five nights a fortnight. She confirmed that the mother’s proposal for three nights per fortnight was less than what she was making a suggestion would be most suitable for Y.

4. The writer stated that it was not possible for her to give further comment on whether or not she thought it would be suitable for Y to live in a week about arrangement:

   Without having any information about the current workability of the week about for X, and further information about the parents co-parenting, et cetera, which I was suggesting was contra- indicating a week about arrangement.

   The writer also referred to, in the context of a possible week about arrangement for Y, her concerns in relation to the parties’ lack of communication, the children witnessing parental conflict and Y being used as a messenger.

5. The writer was asked to comment as to the indicators as to a week about arrangement being good for children. She stated that one was the capacity of the parents to effectively co-parent, communicate and negotiate. As to the term “co parent”, she stated that she was referring to the parent’s ability to identify and then discuss the children’s needs, arrangements for the children, how to manage difficulties that arise for the children. And ability to communicate day-to-day matters and also more complex and more difficult matters. That is, their ability to adequately resolve and provide consistent solutions to the children about those sorts of things. She referred to the parties’ ability to not expose the children to conflict was another significant factor; that was both overt and covert conflict. That might be shouting or threatening each other and those sorts of things, or it might be refusing to deal with issues that are important for the children or making the children messengers, making negative comments about the other parent. Another factor was the parents’ views of the other parent and their ability to respect the other parent and their role in the children’s lives which was an issue of concern in this family. The writer was concerned about the sorts of attitudes these parents are exposing the children to about the other parent and in this context she confirmed the parents seem to have a very poor opinion of the other. The writer stated that in an ideal world, children living in a week about arrangement, the parents would be able to actively and readily share a lot of information about the children in order to continue to provide the children with a lot of consistency and support.

6. The writer was asked about her recommendation for Y to spend 5 nights per fortnight with the father. She stated, inter-alia, that it was a balancing up of the risks associated with the parental conflict and the need for Y to be having significant time with both parents and the other children.

7. The writer stated that it was not ideal for a potential equal time arrangement if the mother’s ability to communicate face-to-face with the father was quite limited and presently they were really only able to communicate in relation to the children through electronic means. It did raise concerns about the longer term workability of it and particularly if Y was having to be responsible for negotiating and communicating between the parents.

8. The writer stated that, in relation to evidence pertaining to the parties’ lack of effective communication with each other, that she would not consider recommending the child Y spending more than five nights per fortnight with the father. She stated that if the communication issue was the only issue, then it might be better if Y spent the majority of the time in the one household and a bit more limited time in the other to try and reduce those communication issues. However, the writer was conscious of also considering what each parent had to contribute to the parenting for Y and about Y and her relationship with her brothers. Those sorts of factors still made the writer lean more towards the five night kind of recommendation but she had not heard all the evidence and the other factors needed to be weighed up to offset the communication issues.

9. The writer stated that five nights per fortnight as against four nights per fortnight increases the probability that the communication issues are more significant, so it does put more risk there. However, the writer stated the difference between four and five can create a significant difference in terms of Y having the opportunity to have a variety of experiences, and the experience of more variety in terms of caregiving from both parents.

Discussion

1. The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode (2006) FLC-93-286.

2. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   1)      The objects of this Part are to ensure that the best interests of children 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; and

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

   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.

   2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)  parents should agree about the future parenting of their children; and

   e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   a)  to maintain a connection with that culture; and

   b)  to have the support, opportunity and encouragement necessary:

   i)   to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   ii) to develop a positive appreciation of that culture.

   (4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note:     The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>

   Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

1. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

Section 60CC(2) and the primary considerations

1. The primary considerations are:

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

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

2. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3. Section 61DA(1) of the Act provides that:

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. Section 61DA(2) of the Act provides that:

   The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   a) abuse of the child or another child who, at the time, was a member of the parents family (or that other persons family); or

   b)  family violence.

5. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

6. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

The Primary Considerations: s.60CC(2)

1. The primary considerations are:

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

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

Section 60CC(2)(a) - Meaningful relationships

1. Both children have a meaningful relationship with each parent and would benefit from a continuation of those meaningful relationships.

2. The Court notes the competing proposals of the parties in respect of the child Y. The father seeks an order for five nights per fortnight. The mother consents to an order for four nights per fortnight.

3. The Court notes that the mother was the primary carer of the child when the family were together and the father was the breadwinner. The father was also and remains actively involved in the child’s life. Both parents each have much to offer the child.

4. The Court is of the view that Y’s meaningful relationship with both parents would be enhanced and maintained in circumstances where she spent five nights with the father in each fortnight. The preponderance of time spent by Y in the mother’s home will, inter-alia, accommodate the historic nature of the mother’s mother-daughter relationship with Y. The substantial and significant time spent by the child Y with the father will allow the father to both participate in the child’s academic and recreational pursuits.

5. During the parties’ separation under the one roof for almost four years, the child Y has had the benefit of both parents’ presence in the family home with both parents contributing to her upbringing.

6. After the father left the family home in about December 2014 and leading up to the trial, Y was spending substantial and significant time with the father short of an equal time arrangement. There is no evidence that the child’s meaningful relationship with the mother was detrimentally affected during this period.

7. Whilst the parties’ communication with each other is not ideal in the sense that they usually do not have face-to-face communication and tend to employ electronic forms of communication, such as text messaging and emails, there is no contemporary evidence of consistent serious conflict between them in relation to the children. The evidence before the court indicates that the parties are usually able to communicate sufficiently with each other in relation to the children’s week to week activities and also major long-term issues. The Court notes that the parents enjoy between themselves a commonality of values relating to their rearing of the children.

8. It is not without relevance in this context that the parties, by and large, managed to successfully raise three children during the very extensive period of separation under the one roof, without consistent serious conflict between them.

9. The Court is of the view that, particularly with the passage of time and noting that the parties have now resolved their property settlement issues, the parties’ communication with each other is more likely to improve rather than deteriorate especially now that they are not living under the one roof.

10. The Court also notes the apparent success to date of the child X’s equal time arrangement with each parent. That arrangement has been in place since about March 2015.

11. The Court has noted Y’s statements, in particular to the Family Report writer, relating to disruption caused to her school week living between two households. With a view to addressing that concern, the court is of the view that it would be in the child’s best interests that she spend five nights per fortnight with the father commencing from after school on Friday to the commencement of school on Wednesday.

12. The Court notes that the recommendations and evidence of the Family Consultant are consistent with the Court’s views. The Court gives significant weight to this meaningful relationship consideration.

Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Neither party submitted that this primary consideration was relevant.

The additional considerations are set out in section 60CC (3) of the Act. The relevant considerations are as follows:

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;

1. The Court notes relevant case authority in relation to the views of children: R v R (2000) 25 Fam LR 712. Given the childrens’ ages, the Court has given significant weight to their views.

2. The evidence before the Court is that the child X had been spending time with the parents on an equal time arrangement up to the date of trial. He wishes to continue that arrangement. The Court notes his particular age and level of maturity. The Court is of the view that it is in his best interests that he spend time with each parent in accordance with his wishes. The views of the Family Consultant are consistent with this view.

3. The child Y has expressed two particular views. One view is that she live primarily with the mother having found that living equally in two households is disruptive. The other view is that she would wish to spend similar time with each parent that equates to the time that her brother X is spending with each parent. The court is of the view that an order whereby the child Y spends five nights per fortnight with the father will substantially accommodate those views.

4. Again, the views of the Family Consultant are consistent with this view.

The nature of the relationship of the child with: each of the child’s parents; and other persons (including any grandparent or other relative of the child);

1. The Court refers to its discussion under the “meaningful relationship” primary consideration.

2. The children have a positive relationship with the father’s new partner and her family.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity: to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Both parents have taken the opportunity to so participate and to spend time with the children and to communicate with them.

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

1. Both parents have fulfilled such obligations, to the best of their respective abilities.

The effect on the child of any separation from: either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The Court refers to its discussion under the “meaningful relationship” primary consideration. The Court is of the view that there will be no detrimental effect upon the child Y in spending 5 nights per fortnight with the father.

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;

1. The Court is of the view that there should be no relevant practical difficulty or expense in the child Y spending five nights per fortnight with the father.

The capacity of: each of the child’s parents; and 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;

1. Both parents have such capacity.

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;

1. The Court refers to its discussion under the “views of the children” consideration discussed above and notes the present ages of the children X and Y. The Family Report writer stated that Y presented as a bright and cheerful child on interview. She spoke with animation and pleasure about school and her extracurricular sporting activities.

If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right;

1. This consideration is not relevant.

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

1. This consideration has been discussed previously above.

Any family violence involving the child or a member of the child’s family;

1. Not relevant.

If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not relevant.

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.

1. The Court is of the view that its proposed Orders, as previously discussed above, involving Y spending five nights per fortnight with the father would be least likely to lead to the institution of further proceedings in relation to the children. The mother’s proposal that the child spend only four nights per fortnight with the father would not adequately accommodate the child’s need to maintain her close relationship with her brother X.

Any other fact or circumstance that the court thinks is relevant;

1. Not relevant.

Court’s proposed orders by reference to s60CC factors

1. Evaluating the primary and additional considerations under s60CC of the Act as discussed above the court is of the view that an order that the child Y spend time with the father for 5 nights per fortnight from Friday, after the conclusion of school, to the commencement of school on Wednesday, would be in the best interests of the child. Further, an order that X live with and spend time with the parents in accordance with his wishes will also be in the best interests of X. Further, the father’s proposed orders numbered 4 – 16 inclusive (with amendments to the years specified and delete the words “the Christmas” from proposed Order 4) set out in Exhibit ‘B’ will also be in the children’s best interests.

Equal shared parental responsibility

1. Both parties seek an order for equal shared parental responsibility of the children. The court will make an order to this effect.

2. Neither party ultimately sought an equal time order in relation to Y. The court is of the view that it would not be in Y’s best interests for an equal time arrangement to apply. Whilst the Court is satisfied that the parties can sufficiently communicate in the context of a regime whereby the child spends 5 nights per fortnight with the father, in the absence of serious conflict, the Court is of the view that there is a real risk that the parties may well experience serious conflict in the context of an equal time arrangement in relation to Y, to the detriment of the children.

3. The Court notes that X is presently in an equal time arrangement. As discussed, it is in his best interests that an order be made that he spend time with each parent in accordance with his wishes.

4. The Court’s proposed order for the child Y to spend five nights each fortnight with the father will constitute substantial and significant time under the Act. On the evidence before the Court, such substantial and significant time is reasonably practicable; inter-alia, the parties live relatively close to each other and the parties have been able to accommodate occasional logistical difficulties arising from time to time, in relation to the children spending time in each parent’s respective household since the father has left the family home.

5. The Court will make Orders accordingly.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 12 February 2016