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Lees & Lees [2012] FMCAfam 1074

Categories: Shared Parenting, Substantial and Significant Time
Tags: , , , ,

Judge Name: Whelan FM
Hearing Date:
Decision Date:10/10/2012
Applicant: Mr Lees
Respondent: Ms Lees
Solicitor for the Applicant: Lake Street Lawyers
Counsel for the Applicant: Ms Hannan
Solicitor for the Respondent: Kennedy Guy
Counsel for the Respondent: Dr Alexander
File Number: MLC 10618 of 2011
Legislation Cited: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases Cited: Goode v Goode (2006) 36 Fam LR 422
Jurisdiction: Family Law Division of the Federal Magistrates Court of Australia
Parental Responsibility Outcome: Equal Shared Parental Responsibility
Residential Outcome: Primary Residence - 71% residence or more with the mother


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ORDERS

That the Mother and the Father have equal shared parental responsibility for the children of the relationship [X] born [in] 2004 and [Y] born [in] 2006 (“the children”).

That the said children live with the Mother.

That the said children spend time with the Father for the period of time spanning the Father’s rostered days off in accordance with his work roster.

That for the purposes of facilitating the time spent with the Father changeover shall occur as follows:

at the children’s school when the first and last days in each block of four days fall on a school day, with the Father collecting the children from the school on the afternoon of the first day and returning them to school on the morning of the last day;

where the first day does not occur on a school day, the Mother shall deliver the children to the Father’s home at 10.00am on the first day of the four days;

where the last day does not fall on a school day, the Father will deliver the children to the Mother’s home at 5.00pm on the last day of the four-day block.

That the children spend half of each school holiday period, including the Summer school holiday period, with the Father on a week about basis, whereby the Father notify the Mother well in advance of the week that he wishes to take the children on family holiday.

That the children spend each Boxing Day with the Father, unless otherwise in his care, from 5.00pm Christmas Day to 5.00pm Boxing Day.

In the event that the children are spending time with the Father on Mother’s Day, then time spent with the Father is suspended from 10.00am to 5.00pm on that day, to enable the children to spend Mother’s Day with the Mother.

In the event that the children’s time with the Father in accordance with Order (3) does not include Father’s Day, then the children are to spend time with the Father on Father’s Day from 12.00pm to 5.00pm when the Father is rostered on night shift and from 6.00pm to 8.00pm when the Father is rostered on day shift.

In the event that the children are spending time with the Father on their birthday, time spent with the Father is suspended from 4.30pm to 6.30pm to enable the child to spend time with the Mother on their birthday.

In the event that the children’s time with the Father in accordance with Order (3) does not include the child’s birthday, then the child is to spend time with the Father from 3.30pm to 5.30pm when the Father is rostered on night shift and from 6.00pm to 8.00pm when the Father is rostered on day shift.

That neither party change the school at which the children are attending without obtaining the prior written consent of the other party.

That both parties be noted as enrolling parents and emergency contacts at the children’s school, after-care and extracurricular activities.

That both parties agree on extracurricular activities for the children and both parties are equally responsible for the cost of such activities and ensuring the child’s attendance.

That either party be at liberty to attend any significant (e.g. end of year, semester or term) school events, and any significant extracurricular or sporting events.

That the Mother authorise all schools and child care facilities that the children may attend from time to time, to provide the Father with copies of all school reports, photographs, newsletters, notices and any other information a parent is entitled to receive.

That the parties notify each other within 24 hours of any change of address, email or telephone number (including mobile phone).

That each party shall keep the other informed in the event that either of the children require urgent medical attention whilst in their respective care, and that such notification be provided within 24 hours of the said medical attention being obtained.

That the Father be provided with the details of any medical specialist, therapist or other counsellor that either of the children attend and be authorised to obtain any information about the child from them.

That neither parent cause either child to attend upon any psychologist, psychiatrist or other counsellor without the prior consent of the other parent.

That both parties are restrained from:

Denigrating the other party or other party’s family in the presence or hearing of the children; and

Discussing parenting disputes and/or issues with or in the presence of the children.

That all extant Applications are otherwise dismissed.

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

REASONS FOR JUDGMENT

This is an application by MR LEES (“the Father”) for parenting orders with respect to the two children of his marriage to MR LEES (“the Mother”). The children are [X] born [in] 2004 and [Y] born [in] 2006 (“the children”).

The Father seeks parenting orders which would align the time the children spend with him with his work roster. The Father is a [occupation omitted] who works an eight-day roster of two 10-hour day shifts followed by two 14-hour night shifts and then four days off. In accordance with interim Orders made in February 2012, the children spend five nights with the Mother, followed by three nights with the Father during the school term and one week with each parent during the school holidays. The Father seeks that the children have every Boxing Day with him and alternative weeks during the Summer school holidays – provided that he has the second week in January to take them on an annual holiday with his family.

The Mother seeks that the children live with her and spend each alternative weekend from Friday after school until Monday before school with the Father and time on each Thursday. She proposes that they alternate time on Christmas Eve and Christmas Day each year and the children spend half the school holidays with the Father, including on a week about basis over the Summer school holidays.

Background

The Father is 41 years of age and was born [in] 1970. The Mother is also 41 years of age and was born [in] 1971. The Father is a [occupation omitted] and has been so employed for over 10 years. The Mother is a [occupation omitted].

The parties commenced co-habiting in 2001 and married in 2008. They separated on 26 November 2010 when the Father left the then marital home in [C]. Initially, the Father collected the children from school when he was not rostered on day shift and the children stayed with him until the Mother finished work and she then collected the children from him. He also had the children every second weekend from Friday to Sunday and his Mother looked after them when he was working.

After the sale of the former marital home in February 2011 the Mother moved to a rental address in [C]. The Father initially lived with his Mother in [W], but later moved into a property in [C] also.

During the latter part of 2011, the Father was able to change his shifts to work day time only as a form of ‘welfare leave’. In evidence he stated that this was only available for a short period and in any case for a maximum of six months.

On 9 November 2011, the Father collected the children from school and day care, and after some negotiation the parties agreed to having the children on a week about basis. The Father reverted back to shift work towards the end of 2011.

On 1 February 2012, Orders were made providing for the children to spend time with the Father in accordance with his roster. Other Orders were made including an Order for the parties to attend a Conciliation Conference with respect to property matters and for a family report to be prepared in relation to parenting issues.

On 21 March 2012, the parties and the children attended on Dr W for the preparation of a family report. On 19 April 2012, they attended a conciliation conference.

On 21 April 2012, the Mother moved residence to [A] and the children changed schools on 23 April 2012. The Mother notified the Father of the relocation by text message on the day the children changed schools.

On 4 May 2012, the Father relocated to his Mother’s house in [W].

Issues

The only issue before the Court was whether the children should spend time with the Father in accordance with his rostered days off or in accordance with the Mother’s proposal.

The parties

The Father was described by Dr W as co-operative and very keen to get what he wanted. He told her that the children were used to his roster and would cope. He also impressed her as a very positive and appropriate Father. He was keen not to have to rely on others to look after the children and to have quality time with them. He told Dr W, and this was consistent with his Affidavit evidence, that during the marriage he spent a lot of time with the children, getting them to school, picking them up and making dinners. His opposition to the Mother’s plan was based on his concern that in reality he would only be able to spend one full weekend in four, of the weekends he was supposed to have them, with the children because of his work roster.

The Father explained the roster, his leave entitlements and the rostering of his holidays. He gave evidence that he had applied unsuccessfully for three day shift jobs last year. While there was some capacity to ‘swap’ shifts and to arrange with the incoming shift to leave early, there was not a great deal of flexibility in his working arrangements. The Father gave evidence of the impact of the Mother’s proposal on his time with the children.

The Father gave evidence that once the issue of his time with the children was settled, he intended to move from his Mother’s and find accommodation in the [A] area. He has not re-partnered.

Dr W described the Mother as co-operative and very determined to get her point across. She accused the Father of taking a position in order to make things hard for her. Dr W did feel that the Mother was more focussed on the children and their interests than the Father. The Mother placed emphasis on the children’s need for structure and consistency. She felt that the Father should have to organise and pay for baby sitters just like she did.

I also found the Mother to be at pains to get her point across and her proposals accepted, to the point of not listening to what was being put to her and speaking over Counsel who was asking her questions. She did not appear to see how her actions, in making unilateral decisions about the children were inconsistent with her proposal that the parties have joint parental responsibility.

While the Mother claimed that her hours of work were ‘set’ at 9.00am to 6.00pm or 5.30pm, she also gave evidence about leaving the office as early as “not long after 4.00pm” on Wednesdays and about 4.30pm on Thursdays to take [X] to extra-curricular activities. The Mother also stated that work on those Saturdays when she was required to work could vary from as little as one hour to six or seven hours.

The Mother proposed that on weekends, or Thursdays when the Father had to work night shifts he could drop the children off at her place at 5.30pm, or his Mother could look after them. She maintained that the Father had greater flexibility than he admitted.

The Mother agreed that she had discussed the Court proceedings with the children but claimed that the Father had also done this. She has told them what she wants. She maintained that this was also what the children want, or at least [X] and [Y] agree. She agreed that after the February Orders she went home crying because of the outcome.

The Mother has re-partnered. Her partner has a son, [Z], who is the same age as [Y] and they attend [sport omitted] together. Her partner usually stays with her on Wednesdays and either Friday or Saturday. He sees [Z] every second weekend when both he and [Z] may stay at her place.

The children

Dr W described [X] as reasonably happy, well adjusted, talkative, articulate and intelligent and somewhat aligned with her Mother. She told Dr W that she wanted to go back to every second weekend, but Dr W was not sure if this was just repeating what her Mother said. [X] also indicated that she would be happy with three nights if her Mother was okay with that.

Dr W expressed a concern that [X] had been exposed to “too much adult information”.

Dr W described [Y] as reasonably happy, well adjusted, talkative and intelligent. He talked about liking things the way they were, but told her that his Mother told him that this would not be so good. His Father described him as a happy little boy who enjoyed spending time with him. His Mother stated that [Y] basically agreed with what [X] said.

The applicable legal considerations

The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.

Parental responsibility

Further, s.61DA of the Act sets out that when making a parenting order, 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 unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.

While the Mother in her response supported joint parental responsibility for the children, she has not shown by her actions a commitment to what that means. Her evidence concerning the decision to relocate, and her failure to notify the Father until it was a fait accompli suggests that she will have difficulty in involving the Father in joint decision-making. The Mother has also enrolled the children in extra-curricular activities without consulting the Father and arranged counselling for [X] without his knowledge or consent. This suggests that joint parental responsibility will need to be reinforced with specific orders to ensure that it occurs.

Equal time spent with each parent

Section 65DAA(1) of the Act requires that where a parenting order has been made for equal joint parental responsibility, the Court is to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.

The Full Court in Goode v Goode (2006) held that even where the Court does not make an order that the parents have equal shared parental responsibility for a child, the Court must still consider whether it is in the child’s best interests that the child spend equal time or substantial and significant time with each parent. The Court must also consider whether spending substantial and significant time is reasonably practicable. Such is provided for in s.65DAA(2) of the Act.

Pursuant to s.65DAA(3) of the Act, substantial and significant time constitutes both weekend and holiday time and allows the parent to be involved in both the children’s daily routine and occasions and events that are of particular significance to the children.

Section 65DAA(5) of the Act also sets out what the Court must have regard to in considering what is reasonably practicable. I have considered these issues.

The Father is not seeking equal time in this matter. The parties did experiment with a week about arrangement late in 2011, but, apart from school holidays, this does not appear to have been very successful for either of the parents or the children. There is no disagreement that the children should have substantial and significant time with the Father. It is the practicalities of how this may be arranged, which is at the centre of the dispute between the parents.

Primary considerations

Section 60CC factors

Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence. These are matters I shall address below.

Section 60CC(2)(a)

It is not in dispute that the children have a meaningful relationship with both of their parents. Dr W observed that the children “appear to have formed a strong bond with both parents”.

Both parents, however, deserve criticism for involving the children in the current dispute between them.

Section 60CC(2)(b)

There was no evidence of any family violence or any risk of the children being exposed to physical or psychological harm, abuse, or neglect when in the care of either of their parents.

Additional considerations

Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.

Section 60CC(3)(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

I place little weight on the views of the children as reported by the Mother. She has quite a forceful personality and I am sure their views as expressed to her would reflect her own position.

Dr W’s evidence was that the children had told her that they wanted to go back to an every second weekend. Their reasons were a lot to do with what their mum had said. She found it hard to say if what they were saying was their Mother’s words or theirs. She later stated that “they really were quite a bit confused about what everybody was wanting and what mum’s proposal meant and what dad’s proposal meant. She further stated that she got the sense that the children “had been told specific days and numbers” and “they were sprouting these numbers and that because of what people had told them”.

Given the children’s ages and my view that their views as expressed to Dr W are likely to have been influenced by others, I do not place any great weight on those views.

Section 60CC(3)(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)

The children appear to have a good relationship with both parents. Dr W described it as “a strong positive bond”. At the time the children saw Dr W the children had met the Mother’s new partner and spent some time with him. He did not, however, feature in the report. The children also clearly have a relationship with the paternal grandmother who has looked after them when their Father has been at work.

Section 60CC(3)(c): The willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Both parents are critical of each other and have difficulty in communicating. Dr W gained the impression that they tended “to act in ways that purposely annoy and/or upset the other at times”.

There was also evidence of the Father having spoken negatively about the Mother to the paternal grandmother in the hearing of the children. His evidence was also that this no longer occurred.

The Mother’s tendency to arrange things involving the children without consulting the Father is also of concern in terms of her capacity to foster the children’s relationship with him.

Both parents, however, recognise the importance of the other to the children. They are not sufficiently aware, however, of the impact on the children of their hostility towards each other.

Section 60CC(3)(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 children, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The children have been through several changes since the separation including two changes in residence and also changes in schools. There have also been four different parenting arrangements.

Dr W emphasised the need for the children to have structure and stability in their lives. The Father says that this can be achieved by the current pattern of care which is based on five nights with the Mother and three with him. The Mother contends that this can only be achieved by a pattern involving alternative weekends and one mid-week visit in between.

There is some evidence to suggest that the children continue to still suffer some stress from the separation and probably the changes which have occurred over the last 22 months. The Orders made by the Court should, therefore, take this into account.

Section 60CC(3)(e): The practical difficulty and expense of the 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

The parents currently live close to each other and to the children’s school. The Father intends to remain in the area in order to facilitate the children spending time with him.

The Mother contends that the current arrangements cost her more because she has to pay for after school care and baby sitting. On her proposal, however, it would seem that the children may spend more time in after school care, whoever is responsible for the payment.

The Father says that the Mother’s proposal creates practical difficulty for him in spending time with the children because the nature of his employment means that the children would need to be looked after by someone else for significant periods of time when they were nominally in his care.

Section 60CC(3)(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

It is not contended that either parent is incapable of providing for the needs of the children, including emotional and intellectual needs. Both parents have been involved in the children’s extracurricular activities. Dr W’s observations of the parents with the children support a finding that they are both able to respond to the children appropriately.

Section 60CC(3)(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

It is relevant to the matter before the Court that that Father is a shift worker and that this imposes a particular lifestyle on him. While the Mother suggested that he could sleep on night shift, and this undoubtedly does occur, it is not always the case and he may need to sleep during the day. He does not have the same ‘weekends’ as non-shift workers with his days off sometimes coinciding with a Saturday and Sunday and sometimes not. This has been his pattern of employment – apart for a short period in 2011 – since the children were born.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child: (i) 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 (ii) the likely impact any proposed parenting order under this Part will have on that right

Section 60CC(3)(h) is not relevant to these proceedings.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;s.60CC3(j): Any family violence involving the child or a member of the child’s family and s.60CC3(k): Any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order; or (ii) the making of the order was contested by a person

Both parents appear to be committed to their role as parents. There are no issues relevant to s.60CC(3)(j) or s.60CC(3)(k).

Section 60CC(3)(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

The Father argues that it is important that the time the children spend with him is actually with him. He argues that the children have been accustomed to his roster and it is predictable and easy for them to understand.

The Mother argues that the orders she proposes enable the children to have regular contact with the Father but to also have certainty and consistency with their weekly routine. She argues that the current pattern is likely to cause the children anxiety and distress.

Conclusions

There is no doubt that both the Father and the Mother in this matter love their children and do their best to care for them. The reality is that the Father is and was a shift worker and that inevitably has an impact on family life. If the parties were better able to communicate, and less entrenched in their own positions, they could negotiate flexible arrangements that might be both mutually beneficial and of benefit to their children. Unhappily, they are not able to do so.

Further, the children are both acutely aware of the conflict between their parents and the positions they have both taken. Both parties, in my view, see the matter more in terms of ‘fairness’ to themselves than in what is best for the children.

The type of orders framed by the Mother are commonly seen in this Court as some standard for children to spend substantial and significant time with their fathers. They are a model based on certain assumptions about working patterns which are not present in this case.

I am satisfied that the Mother in this case has exaggerated the inflexibility of her own situation. Dr W had the impression that she worked every Saturday and her evidence about leaving work early on some days and starting late on Saturdays was inconsistent with her claims that her hours were ‘set’. At the same time she exaggerated the Father’s flexibility, which I accept in reality amounts to the capacity to arrange to start or finish 30 minutes early and to swap shifts so long as someone else is willing to do so.

It cannot seriously be suggested that the Father should use personal leave – designed to cover his own illness, the illness of the children or family emergencies – to simply take a day off if he is otherwise rostered to work on a weekend when he has the children. Nor can he take any number of single days of long service leave or annual leave for that purpose.

The children want to spend time with their Father. The Mother is clearly their primary care-giver and that will continue to be the case under any proposed parenting arrangement. Because she works there will be limits on the time she can spend with the children out of school hours. The same is true of the Father. The Father’s time, however, may be even more limited if during what is ‘weekend time’ for them he is working, because it is not his ‘weekend time’.

The Mother’s proposal relies on the children either being returned to her care or being cared for by the paternal grandmother when the Father is required to work and the children are not in school. In my view this is even more disruptive than a situation where, while the actual days vary from week to week the children spend a block of time with their Father.

Under the Father’s proposal he spends both weekday time and weekend time with the children. This means he is exposed to the day to day jobs of getting them to and from school, meals and weekday bed time routines. He can take them to after-school activities. He also has a solid block of days when his days off coincide with a weekend.

I am satisfied that the Father’s proposal does provide stability, certainty and consistency for the children. It may not be the type of stability, certainty and consistency that is experienced by children who have a five day a week, nine to five type working pattern, but it is not unlike the life experienced by other families of shift workers. It is the life, which up until the parents separated, the children had lived with all of their lives.

A routine which revolves around their school week may be the ideal, but it is not in my view practical, if the children are to have the benefit of the maximum amount of time actually with their Father, rather than simply being theoretically in his care.

For these reasons I am satisfied that the interim orders should continue.

With respect to Christmas time, I see no reason why the proposal that the children have Christmas Day with the Mother and Boxing Day with the Father should not be accepted. I imagine that if the Father was rostered to work Christmas Day it would be very hard for him to swap that shift. Provided the Father gives the Mother sufficient notice, it should also be possible for one of his week’s during the Summer school holidays to be the week that his family goes on their annual holiday together.

In accordance with both the parties’ proposals I intend to order joint parental responsibility for the children. There will be orders which express the minimum requirements of such joint responsibility to ensure that the parties understand and comply with those requirements.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment ofWhelan FM

Associate:

Date: 10 October 2012


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