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Sharlow & Nance [2021] FCCA 714 (25 March 2021)

Last Updated: 20 May 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sharlow & Nance [2021] FCCA 714

File number(s):
NCC 1605 of 2020


Judgment of:
JUDGE BECKHOUSE


Date of judgment:
25 March 2021


Catchwords:
FAMILY LAW- interim parenting - where a shared care arrangement is sought by the father – where one child has autism spectrum disorder


Legislation:


Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71
Goode v Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4
R v R [2002] FamCA 43
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100


Number of paragraphs:
93


Date of last submission/s:
24 March 2021


Date of hearing:
24 March 2021


Place:
Newcastle


Solicitor for the Applicant:
Ms Beckett of Peter Hamilton and Associates


Solicitor for the Respondent:
Mr Collett of Collett Lawyers


ORDERS
NCC 1605 of 2020

BETWEEN:
MS SHARLOW
Applicant
AND:
MR NANCE
Respondent

ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
25 MARCH 2021



THE COURT ORDERS THAT:

  1. That X born in 2009 and Y born in 2011 (“the children”), live with the Mother.
  2. The children live with the father during school terms as follows:
(a) each alternate week from after school or 3:00pm Friday until before school or 9:00am Wednesday morning.
  1. The children live with the father during school holiday periods as follows:
(a) Following the end of terms 1,2 and 3:
(i) On a week about basis with the father’s first week starting on the Friday of the school holiday period when the children were not with the father during the immediate preceding weekend and with changeover taking place afterschool or 3:00pm each Friday thereafter;
(ii) The children shall remain with the parent’s care that they move into on the last Friday of the school holiday period until the first day of school term.
  1. The children shall spend time with the parties during the school holiday period following the end of term 4 as follows;
    1. From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the even years the children shall be in the care of the mother;
    2. From 3.00pm on the first day of the Christmas holidays until 12 noon on Christmas Day in the odd years the children shall be in the care of the father;
    1. From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on Friday the children shall be in the care of the father;
    1. From 3pm on the second Friday in January in odd years, for a two week block until 3.00pm on the Friday the children shall be in the care of the mother;
    2. At the conclusion of the time in the second week block of the Christmas Holidays, the children spend time on a week about basis between the parents with changeover occurring each Friday at 3pm;
  2. Notwithstanding any other order the children shall spend time as follows:
    1. With the mother from 5.00pm on the Saturday before Mother’s day until 9.00am or the commencement of school the following day;
    2. With the father from 5:00pm on the Saturday before Father’s day until 9:00am or the commencement of school the following day;
    1. With the Father on his birthday from 3:00pm or after school (if a weekday) or from 5:00pm the day before his birthday until 5:00pm on the following day (if a weekend or school holiday).
    1. With the parent they did not wake up with on the children’s respective birthdays from after school or 3:00pm (if a weekday) for 2.5 hours or from 4:00pm until 8:00pm (of a weekend or school holiday) unless otherwise agreed.
    2. With the mother from 9:00am on 23 December until 12:00pm on 25 December in odd numbered years and from 12:00pm on 25 December until 12:00pm on 27 December in even numbered years;
    3. With the father from 9:00am on 23 December until 12:00pm on 25 December in odd numbered years and from 12:00pm on 25 December until 12:00pm on 27 December in even numbered years;
    4. With the father from 3:00pm or after school on Holy Thursday until 9:00am or before school on Tuesday following Easter Monday in odd numbered years;
    5. With the mother from 3:00pm or after school on Holy Thursday until 9:00am or before school on the Tuesday following Easter Monday in even numbered years;
  3. The non-care parent to have facetime communication (or similar video application) with the children every Tuesday at 5pm and every Thursday at 5pm with the other parent to facilitate the call, and both parents will allow the children to communicate with the other parent by text message or email.
  4. That each party is hereby restrained from denigrating the other party in the presence of or within the hearing of the child and from causing or permitting any other person to do so.
  5. Each party is restrained from asking either of the children about their views on their living arrangements or their views about any proposed changes to their living arrangements or allow the children in the presence of any other person doing so.
  6. Each party is to notify the other of their residential address, telephone number, within 7 days of the date of these orders and keep the other party advised of any proposed changes to the above details within 14 days of any proposed changes.
  7. Each party is to contact the other as soon as reasonably practical upon either of the children being admitted to a hospital or receiving specialist medical attention while the child or children are living with or spending time with them.
  8. Each party is at liberty to obtain all relevant medical records and consult either of the children’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.
  9. Each party is at liberty to attend either of the children’s schools and school functions and obtain all details from either of the children’s schools including reports, newsletters, school photos and these orders are sufficient authority for that purpose.
  10. Neither party shall denigrate the other in the presence of either of the children or permit either of the children to remain in the presence of any person doing so.
  11. Neither party shall enrol or commit the children to attend any sporting, cultural, educational and religious event that occurs during the time the children are to be with the other party without the party’s consent.
  12. The parties shall do all acts and things, including sign all documents necessary to ensure the children’s Passports stay valid, within 7 days of any written request to do so.
  13. Each parent is permitted to take the children out of the Commonwealth of Australia during the time they spend with the child.
  14. Any party proposing to travel internationally with the children must give the other party at least thirty (30) days' notice of the intended travel setting out the dates of departure and return, flight numbers and details of where the child will be residing outside of the Commonwealth of Australia, unless the travel is due to a family emergency, such as a death of a family member in which case the notice shall be given as soon as reasonably practicable.
  15. That the Father hold Y’s passport and the Mother hold X’s passport and upon not less than 14 days prior to any overseas travel, the non-travelling parent will provide the travelling parent with the passport they respectively hold.
  16. Within seven (7) days the legal representatives for the Mother provide to the legal representatives of the Father the names of three (3) suitably appropriate experts to undertake a family report including their CVs and the Father within seven (7) days will nominate one from the three (3) proposed.
  17. The parties have leave to send to Chambers a proposed Minute concerning the appointment of an expert.
  18. The matter is adjourned to 28 May 2021 at 10.30am for mention. The parties have leave to seek an administrative adjournment of that date should consent orders have been made in relation to the appointment of an expert by that time.

NOTATION

  1. That both parties agree to contact each other about the children using the Our Family Wizard Application. The parties will only contact each other via phone in emergency situations.
  2. The parties agree that the next step in this matter is the appointment of an appropriate single expert.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

  1. These reasons for judgement were delivered orally. Grammatical and literal errors have been corrected from the transcript for comprehension and legal references included.
  2. These are parenting proceedings in relation to X, born in 2009, who is aged 12, and Y, born in 2011, who is aged nine. The issue for determination is the future parenting arrangements, on an interim basis, for the children.

PROPOSALS AND DOCUMENTS RELIED ON

  1. The father seeks that the children live with the parents in a 50-50 shared care week-about basis from Friday to Friday.
  2. In support of such orders, the father relies on:
(a) Amended Response filed on 17 March 2021
(b) Affidavit sworn by him and filed on 17 March 2021.
  1. The mother seeks that the children live with her and spend time with the father in a block set of five nights a fortnight, and one-half of all school holiday periods.
  2. In support of such orders, the mother relies on:
(c) Amended Interim Application, filed on 28 January 2021
(d) Affidavit sworn by her and filed on 11 March 2021
(e) tender bundle (marked exhibit three).
  1. Both parties rely on the contents of the Child Inclusive Conference memorandum, dated 22 September 2020, that was marked exhibit two.
  2. The proceedings were commenced by the mother on 20 May 2020.
  3. There is some context to the commencement of the mother’s application that is perhaps relevant. On 25 October 2017, the parties attended a mediation and subsequently entered into a parenting plan.
  4. The parties appear to have largely followed the terms of the parenting plan from October 2017 until January 2020.
  5. The parenting plan provided that the living arrangements remained in place until X started high school, at which time they would move to a 50-50 shared care arrangement. X commenced year 7 in 2021.
  6. In March 2020, the events of COVID-19 began unfolding and there was a further deviation from the parenting plan. This was in the context of the father being a health care professional and the need for the parties to protect X, who suffers from a medical condition.
  7. The mother alleges that the father retained both children in his care without her consent from the period 13 March 2020 until 20 March 2020.
  8. The parties seem to agree that they moved to an arrangement where the children live with the mother for a nine-day block and then with the father for a five-day block, while the children were being schooled at home.
  9. A dispute however arose as to when the children would return to school. Ultimately, following the involvement of medical practitioners and the school, the children returned to school on 3 June 2020.
  10. When the father’s time with the children commenced on 5 June 2020, he says it was in accordance with the terms of the parenting agreement. By that I think he means, clause 2.1 and 2.2 of the parenting agreement, which provided that in week 1 the children spend Monday night with the father, and in week 2 Monday, Friday, Saturday and Sunday night with the father.
  11. When the matter came before Judge Betts on 1 July 2020, an order was made under section 11F of the Family Law Act 1975 (Cth) (‘the Act’) for the parties and the children to attend a Child Inclusive Conference on 22 September 2020.
  12. The parties participated in a private mediation after the release of that memorandum.
  13. Ultimately, the matter was listed for interim hearing before me yesterday on 24 March 2021. The matter concluded and oral submissions were made in the early afternoon. As I had another interim matter to determine that afternoon, I reserved my decision until 9 am this morning.

INTERIM HEARING PROCESS

  1. In arriving at a determination, regard has been given to:
(a) the relevant filed material and tendered material;
(b) the terms of the most recent parenting plan, dated 30 October 2017;
(c) Part VII of the Act; and
(d) the Full Court decision of Goode v Goode [2006] FamCA 1346, which sets out the pathway to follow in interim hearings, and cautions about making findings on disputed facts.
  1. The parties are legally represented and cross-examination did not occur.
  2. All parties provided written and oral submissions. Each of those submissions has been properly considered in reaching the determination, but I am not required to specifically address and respond to them individually.
  3. As the Full Court has observed, the interim hearing process is a truncated one. The Court should not make findings based on contested facts, but rather look to agreed facts and issues not in dispute, while still following the legislative pathway.

ISSUES FOR DETERMINATION

  1. The parties are in agreement about a range of ancillary matters and have agreed to make some orders by consent. They will be incorporated into the Orders I make today.
  2. The principal issues for determination by the Court, therefore, are:
(a) Should I make an order that the children live primarily with the mother and spend time with the father in a five-day block each fortnight; or
(b) Should an order be made that the children live with each parent on a week-about arrangement, as proposed by the father, and if I do not make such an order, should the children spend time with the father in accordance with clause 2.1 of the parenting agreement, which is essentially four nights and one night each fortnight?

BACKGROUND

  1. There are a few matters that are relevant by way of background to this matter.
  2. The applicant mother is Ms Sharlow, who was born in 1967 and is currently aged 54 years. She is a professional.
  3. The respondent father, Mr Nance, was born in 1969, and is currently aged 51. He is a health care professional in Town B.
  4. The parties commenced living together in or around 2006, and they separated on 13 August 2017. The father has now re-partnered with Ms C. She has a daughter D, aged 11 who lives with Ms C and the father. It would appear that the children enjoy a good relationship with Ms C and D.
  5. X has a number of health conditions. Notably, she suffers from a medical condition, which makes her more susceptible to autoimmune diseases and infections. It would appear that the parties work together to ensure that X follows her medication regime and that her condition is appropriately monitored.
  6. Y has a number of health problems, including eczema, but of most note is that, on 20 March 2019, he was diagnosed with autism spectrum disorder (ASD), level 1. He consults with psychologist Ms E.
  7. Apart from these matters, I note the pleadings are lengthy and focus on the communications between the parties around the parenting of the children. Perhaps somewhat tellingly, despite lengthy affidavits and written submissions, I found it difficult to get any picture of the children’s day-to-day lives; the schools they attend, their progress at school, their interests, how they travel between the two houses, or their extracurricular activities. This is no doubt a reflection on how focused the parents are on the parental conflict.
  8. In the mother’s Notice of Risk filed on 20 May 2020, she indicates that there was a history of family violence between the parties. She also makes allegations, from paragraph 67 to 80 in her affidavit. The father has denied this history. In any event, for the purposes of the interim hearing, there is no assertion that the father poses any risk to the children on account of this alleged history and I cannot make any findings about it.

THE FATHER’S SUBMISSIONS

  1. The father’s case is that the parties entered into a parenting agreement on 30 October 2017 and, since that time, the children have lived with the mother and spent time with the father in accordance with that agreement, save for the period interrupted by COVID-19.
  2. In accordance with the parenting agreement, the children currently spend five nights per fortnight, in two blocks, with the father. The mother wishes that the father’s time be converted to a block of five nights. The father objects to this because it would mean that the children do not spend time with him for a block of nine and a half days.
  3. The father also says that the parenting agreement provided that, upon X commencing high school, the children will move to an equal time arrangement, and, as I have noted, X has now commenced high school.
  4. Therefore, the father argues that his time should move to an equal shared care arrangement, with changeovers at school.
  5. In response to the mother’s assertion that communication between the parties is difficult, the father deposes that the parties communicate using OurFamilyWizard, and have done so for over two years. Indeed, annexed to the father’s affidavit and contained in the mother’s tender bundle are lengthy communications between the parties on a variety of matters. The father says that, whilst at times the communications are not warm, they are civil, and they have communicated effectively and in the best interests of the children.
  6. The father argues that a shared care arrangement is consistent with the wishes of the children, as contained in the Child Inclusive Conference memorandum.
  7. He says his proposal has the advantage of minimising changeovers between the parties and providing more stability for the children.
  8. There is clearly an issue as to whether a shared care arrangement is suitable for Y, who has autism. The father says that, as a health care professional, he fully understands Y’s condition, works with Y’s psychologist, and fully supports the treatment that Y engages with. Whilst this is contrary to the mother’s view, and that taken by the Family Consultant, he says there is no evidence that the adoption of a shared care arrangement would affect Y’s autism.

THE MOTHER’S SUBMISSIONS

  1. The mother argues that a five-day block of time with the father would be in the children’s best interest.
  2. The mother relies on the evidence of the Family Consultant and a report from Y’s treating psychologist to argue that Y needs consistency between households. She says that her structured proposal provides more certainty for Y as there is less room for interpreting or negotiating of the arrangements between the parties, thereby, she hopes, limiting the conflict between them.
  3. She says that the five-night arrangement is more child-focused and limits the children’s exposure to the parental conflict, which currently arises due to the ongoing communication and contact between the parties, due to the multiple changeovers.
  4. The mother does not agree that the communication between the parties is positive. She relies on the same material as the father to demonstrate that the parties are often unable to negotiate on a range of different issues regarding the children. Notably, the mother refers to lengthy exchanges relating to FaceTime and COVID-19 between the parties in the tender bundle.
  5. The mother provides numerous examples of what she considers to be inappropriate responses to communication by the father.
  6. The mother says that X is acutely aware of the conflict between the parties, and she relies on reports from the children’s psychologist to support this.
  7. She argues that, on an interim basis, the Court should err on the side of caution, and caution would support making orders for the father to have five nights in a block with the children.

THE INDEPENDENT EVIDENCE

  1. The children and the parties were seen by a Family Consultant, Dr F on 22 September 2020.
  2. The Family Consultant considered whether there were risk factors relevant to this matter. In summary, she concluded:
(a) The mother alleges a long-term history of control and intimidation from the father during the relationship and post-separation. This is denied by the father and the issue of family violence needs further consideration and assessment;
(b) Whilst there is no Department of Communities and Justice (DCJ) involvement with the family, the parties had raised issues of ongoing disputes regarding medical issues. The mother complained that the father did not follow the prescribed treatment plan by one of the GPs treating the children. Difficulties between the parties regarding medical treatment of the children is a matter raised in the lengthy affidavit material. For example, the mother alleges that the father has indicated he no longer supports their GP, Dr G, seeing the children.
(c) The Family Consultant reported that the father referred to the mother as having a diagnosis of borderline personality disorder, and the mother alleged that the father frequently called her crazy to other people.
(d) X was interviewed and expressed no concerns or worries about either household. The Family Consultant concluded that the father had certainly spoken to X about the shared care arrangements that were proposed to commence when she began year 7. X reported that she wanted a shared parenting arrangement and thinks it would be good as she could see D and the father more frequently. X, however, thought it would be a significant change for Y and that he would not manage it very well, although he would get used to it. She reported that she wanted the judge to know she would prefer 50-50, but also stated, if not, she would prefer two nights in one week followed by four nights in the second week with the father.
(e) The Family Consultant concluded that X has clearly been exposed to the father’s point of view. She is clearly loyal to both parents and loves both parents.
(f) Similar to X, Y spoke positively about both parents and both households. He responded positively to D. Notably, Y reported that he gets confused about the current arrangements, and sometimes cannot remember where he is supposed to be. He expressed a specific wish to the judge: “a week with my mum, a week with my dad.”[1] He said, if he spent a week with each parent, he would know that he was going to spend a week with them.
(g) In terms of future directions, the report-writer was concerned that a further assessment needs to be made about whether the matter involved controlling and coercive family violence and/or high-level parenting conflict.
(h) She formed a conclusion that the matter is extremely unsuitable for a shared care arrangement, based on the parents’ poor communication levels; high-level conflict; possible family violence; and the specific needs of Y, due to his diagnosis of ASD. She noted that the current arrangements may not be suitable for Y, due to his ASD, as it requires a significant number of changeovers between the parents, and he reported confusion about the current time arrangements.
(i) The Family Consultant’s limited view was that a five-day block would be more beneficial for Y than the current arrangements. She found that X had the capacity to manage either arrangement reasonably well.

THE LAW

  1. The principles governing the determination of competing parenting applications, are set out in Part VII of the Act.
  2. When making a parenting order, the Court must consider what is in the best interests of the children, pursuant to section 60CA of the Act.
  3. The children’s best interests are determined by a consideration of the objects and principles in section 60B of the Act, and the primary and additional considerations in section 60CC.
  4. Section 60CC(2A) of the Act provides that, in applying these considerations, the Court must place greater weight on the need to protect the children from harm than on the benefit to the children of having a meaningful relationship with their parents.
  5. In determining a child’s best interests, the Court must have regard to the matters set out in section 60CC of the Act. While the Court has a limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk.
  6. Much of the arguments focused on the existence of a parenting agreement and whether the terms of it should be upheld or departed from. The Act specifically encourages parents to enter into parenting plans, pursuant to section 63B. Parenting plans are intended to provide a simple and informal process for formalising agreements about parenting between parents. A parenting plan is defined in section 63C of the Act as an agreement that is in writing, signed and dated, and is, or was, made between the parents of the child, or children, and deals with certain matters.
  7. The parties entered into a parenting agreement after lengthy negotiations, which involved a number of professionals described as “advisers” under the Act. The Act sets out a long list of compulsory information which must have been given to the parents at the time. It includes an obligation to explain, in simple language, the availability of programs designed to help parents if they experience difficulties in complying with their obligations under the plan.
  8. The parties may vary or revoke a parenting plan by written agreement. Parenting plans are not enforceable by a court. Nevertheless, if a court is considering making a parenting order, the court is to have regard to the terms of the most recent parenting plan entered into between the children’s parents, if doing so would be in the best interests of the children.
  9. Decisions judicial officers have to make in interim proceedings are difficult, and often a conservative approach or one which is likely to avoid harm to the children, is adopted. This is often to the understandable distress of the party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children.
  10. In interim parenting disputes, there is often conflicting information before the Court, and this case is no different. This is an interim hearing and, accordingly, findings of fact on disputed allegations are not made.

PARENTAL RESPONSIBILITY

  1. The parties do not ask that I make any orders about shared parental responsibility. Whilst these parents are often in dispute on matters concerning the children, there is no doubt that they make, together (and jointly) decisions about the major long-term issues affecting the children, and will continue to do so.
  2. I am required to consider things, including whether the children should spend equal time, or substantial and significant time, with each parent. This essentially is the critical issue in this case.
  3. In making a decision on these matters, I need to consider whether making such an order is in the children’s best interests and then whether those arrangements are reasonably practicable.
  4. It was submitted to me by the legal representatives for the father that the parties both reside in Town B, are of good financial means, and that either proposal meets the reasonably practicable test. I agree with this. The central issue, however, is what outcome is in the children’s best interest on an interim basis.

PRIMARY CONSIDERATIONS

Section 60CC(2) The primary considerations are:

(a) The benefit to the child of having a meaning 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.
  1. The Court must balance the benefit of the children having a meaningful relationship with each parent with a primary consideration of protecting the children from physical or psychological harm.
  2. While the Child Inclusive Conference memorandum listed a range of potential risks for these children, that I outlined earlier, I cannot make, on an interim basis, findings of fact on any of them.
  3. Section 60CC(3) of the Act sets out additional considerations, and reference is now made to those that are relevant to these interim proceedings.

ADDITIONAL CONSIDERATIONS

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.

  1. The weight to be given to the views expressed by a child is as the Court considers appropriate in the circumstances. As was set out in the case of R v R [2000] FamCA 43 at [54] & [44]:

There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case. It is undesirable and indeed, impossible to catalogue or confine them in the manner suggested.

What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial judge, it is apparent that good reason should be shown for doing so.

  1. The children were interviewed via Teams which had been set up on the father’s computer. The Family Consultant was satisfied that, during the interview, the children were not influenced by any person.
  2. As outlined earlier, X, who is 12, says that she wants a shared care arrangement to commence. Her stated preference was a six night per fortnight arrangement in two blocks.
  3. The Family Consultant formed the view that X has clearly been exposed to the father’s point of view. The father told the Family Consultant that X would be hurt and angry if a shared care arrangement did not occur. The Family Consultant was not convinced of this.
  4. Y, who is nine, was reported to express a specific wish to spend, “a week with [his] mum and a week with [his] dad”.[2] Of this view, the Family Consultant said:

It is strongly suggested he has been exposed to the father’s point of view regarding shared care.[3]

  1. The legal representative for the mother asked that I also be mindful that this is a high-conflict matter, where the children have been exposed to parental conflict, and this might be reflected in the consensus position they are expressing.
  2. The views of the children are important, and I will give weight to them, but this is not a matter where they should be determinative.
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);

  1. The Family Consultant found that the children love their parents. It is difficult to get a sense of the nature of their relationships with each parent. Very little information about this is contained in the affidavits. The extensive tender bundles focus entirely on the issues arising from a positional parental conflict, highlighted in their communication as well as the health needs of the children. While there are extensive emails on issues, such as the use of social media by the children, they are entirely parent-centric.
  2. It is clear that the children have formed a fond relationship with the father’s new partner and his daughter and enjoy their time together.
  3. Both proposals will ensure the children continue to enjoy a meaningful relationship with each of their parents.

Section 60CC(3)(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;
(ii) to spend time with the child; and
(iii) to communicate with the child

  1. The parents have actively participated in making joint decisions about the major long-term decisions impacting on the children, but this is also a source of conflict, with the mother arguing that there is a cycle of conflict between the parents. She described their communication on parenting arrangements as having reached toxic levels. The father does not agree with this assessment. He says their communication is effective to ensure the needs of the children have been met.
  2. I do not need to reach a concluded view, except to perhaps say that I was exhausted just reading the communication and found it often to be point-scoring and petty. For example, almost 40 pages of the tender bundle were dedicated to OurFamilyWizard communication relating to the use of FaceTime and arrangements arising from COVID-19. The father says COVID-19 was an exceptional event, but I can appreciate why the mother seeks an arrangement that provides more certainty, stability and predictability; and, by virtue of that, less parental communication.
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;
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom she or he has been living
  1. The father argues there is no evidentiary basis upon which to suggest that moving to an equal-time arrangement would be detrimental to the children.
  2. He also argues that, if the Court is minded to make the orders sought by the mother, it would result in an extended gap of the children not seeing their father. As the children may not be in favour of this, he argues it might too be detrimental to the children.
  3. The mother is hopeful that a move to a five-nine block will limit the children’s exposure to the parental conflict. It seems, from the tender bundle, that issues regularly arise from the multiple changeovers and scheduling issues arise from the children’s current arrangements.
  4. The mother also cautioned about the impact of the change on Y, who has been approved for NDIS funding, which the mother argues might need a more hands-on and consistent approach to his treatment.
  5. The Family Consultant formed a clear view. She concluded that the matter is extremely unsuitable for a shared care arrangement, based on the parents’ poor communication levels, high conflict levels, and the specific needs of Y. She also argued that the current arrangements of two blocks of four and one was unsuitable, because it requires significant changeovers and Y’s reported confusion with it.
  6. Apart from supporting a move to two blocks of five-nine, the Family Consultant cautioned about making any significant changes to the arrangements without further assessment of the issues.
  7. The father was critical of the Family Consultant’s conclusions. He said that the basis for the opinion she reached was not spelt out and was not based on an established body of social science. His legal representative said, simply put:

The opinion is gratuitous, has no weight and does not pass the logic test.

  1. Notwithstanding that, I still have some regard for the opinions of somebody who works closely around the issues of parental conflict.

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;

  1. I have to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. I have to consider – and it has occurred to me that, if the Court was minded to make the orders sought by the father now, they could be trialled and assessed by an expert in advance of a final hearing. However, while there are merits in testing out a potential final outcome, I would need to be satisfied that there was evidence that established that it was in the children’s best interests. The children are not guinea pigs in an experiment.

Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant.

  1. As previously indicated, section 65DAB of the Act requires me to have regard to the terms of the parenting agreement. The father argues that, as the agreement has been substantially complied with, progression to shared care should proceed in accordance with the children’s wishes. He emphasised there is no evidence underscoring between a five-night block and a seven-night block. I am however mindful that a parenting agreement does not bind parties.
  2. There was a significant change of circumstances after the agreement was signed, being the diagnosis of Y with autism. Understandably, the mother seeks to proceed with some caution in those circumstances.

CONCLUSION

  1. By way of conclusion, the father’s arguments were persuasive. There is a temptation to move the children to a week about arrangement because it will potentially reduce the contact the parties have with each other, settle what I perceive is an ongoing controversy behind much of the parental conflict, and accord with the stated views of the children.
  2. But I have to evaluate the proposals and be satisfied that such an outcome would be in the best interests of the children for now. Having thought very carefully about this, and weighed up all the material, I am not satisfied that it would be in the children’s best interests if they were to be placed in a shared care arrangement right now.
  3. As I said from the outset, at an interim hearing, I must take a cautious approach, and I am particularly influenced by the following matters:
(a) There is no independent evidence before the Court on the impact of a shared care arrangement on Y, apart from the Child Inclusive Conference memorandum, and it makes a clear recommendation that such an arrangement would be unsuitable for Y. Even if I disregard the recommendation, as the father has urged me to do, I’m still left with uncertainty as to what arrangement will work best for Y.
(b) The next step in this matter will be the engagement of an expert who can assess a range of matters identified as a concern by the Family Consultant.
(c) I am confident that moving to two blocks of five-nine, as proposed by the mother, will at least reduce the need for so many changeovers and the resultant parental communication. This is partly consistent with the wishes of the children, particularly X, who complains about ongoing exposure to the parental conflict, particularly at changeovers. The father’s concerns about the resultant longer gap without the children can be at least ameliorated by an order for FaceTime communication, and I will make an order for this in accordance with the father’s proposed orders.
(d) The ongoing parental conflict and constant disagreement and issues raised in their communication is having a detrimental impact on the children. I am not satisfied that an order for equal time will reduce the parental conflict and communication, and it is for this reason that, whilst I take the views of X into account, and have considered them carefully, I will not make an order in accordance with them. Indeed, I suspect, with a final hearing in the future, it may only serve to encourage communication of a point-scoring and grandstanding nature. I would caution the parties to consider, not only the impact of this ongoing, persistent communication and grandstanding about the children on the children, but on the future prospects of a court moving these children to an equal time and equal-shared parental responsibility outcome.
(e) Ultimately, this Court is disinclined to make orders for equal time when parties cannot demonstrate effective, or at least functional, levels of co-parenting. The father’s legal representative persuasively argued that, while the communication was a bit clunky or long-winded, these are two highly dedicated parents who have communicated in a way that could be more productive and civil, but have communicated effectively and in the best interests of their children. I am not, on this occasion, satisfied that this is the case. The communication causes stress to the parents which impacts on their parenting, and it is clear that these children are well aware of the parental conflict.
(f) I agree with the mother’s submission that the best interests of the children are best served by providing them with more certainty today with orders that provide two clear blocks. If the children settle into this arrangement, and the parental conflict is reduced, it would then be open to the Court to consider moving to a shared care arrangement once the evidence is tested, and with the benefit of some more detailed family assessments.
(g) I also observe that, whilst sometimes parents, and, by virtue of their involvement, children, can become fixated on the equality of a shared time arrangement, this is a matter where the children are already spending significant and substantial time with their father, including one half of all school holidays, and there is no doubt the father is actively engaged in every decision and issue that arises. Apart from a stability and fairness argument, at this point in time, there is no other particular benefit that has convinced me that, on an interim basis, these children should move to an equal time arrangement during school terms.
(h) There is a dispute about what should happen at the conclusion of the school holiday periods. The mother argues that, for stability, she would prefer the children to return to her on the last Friday of the school holiday period so she can settle them back into a routine. The father, on the other hand, would also like the opportunity to take the children to their first day of school from time to time. It seems that the school holiday orders don’t normally allow for this to occur. I am sympathetic to the father on this and feel it might be remedied by final orders. However, on an interim basis, for the sake of having clear rules and stability, I will make an order that the children remain in the parent’s care that they move into on the last Friday of the school holiday period, until the first day of the school term. But I will not make that order in relation to Christmas, so that the father also has the opportunity, for this coming year at least, pending further order.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.


Associate:

Dated: 3 May 2021

[1] Exhibit 2, Child Inclusive Conference memorandum dated 22 September 2020, paragraph 49.
[2] Ibid.
[3] Ibid, paragraph 50.

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