Contest over one night
- The father, born on (omitted) 1974, is 41. The mother, born on (omitted) 1968, is 47. They commenced living together in (omitted) 1998, did not marry and separated in October 2012 or possibly sometime after that date. In October 2012 the father commenced sleeping in the garage of their home and then in March 2013 moved into a caravan close to the house. He continued to use the facilities in the house and eat in the house. While he was in the garage there were occasions when the mother slept out there with him.
- The father left the property on 18 March 2014. A police officer applied for a family violence intervention order naming the father as the respondent and the mother as the affected family member. The father was present when the order was made and consented to the order without admission. The order prohibited him from approaching or remaining within Property M. It provided that he would not breach the order if he attended on 18 March 2014 and after that, subject to approval by the mother, to collect the caravan and trailer, collect firewood on any day during daylight hours, collect and return tools of trade to use in his occupation or to maintain the property.
- After the father left the property the children remained living with the mother and spent time with the father Friday night on one weekend and from Friday night to Monday morning the following weekend. The children spent half of each school holidays with each parent.
- The parties’ affidavits contain details of a number of incidents and allegations about the other’s behaviour. To some extent they were explored at the hearing. Each acknowledges behaviour which comes within the definition of family violence in s.4B of the Family Law Act 1975 (Cth). Neither acknowledges that the behaviour was as serious as the other party alleges. The mother’s description of events which led to the family violence intervention order includes serious allegations of physical violence by the father towards the mother. The father denies the seriousness but acknowledges that he did push her. Each obtained a family violence intervention order against the other, both of which have now come to an end.
- The family consultant’s report contains a summary of the parties allegations and concessions about their behaviour:
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Both parents have raised concerns regarding family violence during the relationship and post separation. Both parents concede that the parents engaged in verbal and emotional abuse throughout the relationship. According to Mr Jervis, he found Ms Band’s ongoing denigration of him and his family are unbearable and identified that this had a significant impact on his mental health and led to his decision to end the relationship.
According to Mr Jervis, upon ending the relationship, Ms Band’s verbal, emotional and physical abuse of him increased. He reported that must be the physically assaulted him by pushing him, hitting him including assaulting him in a public place. He stated that Ms Band’s verbal and emotional abuse of him increased further when he entered a new relationship and in the presence of the children would tell him that he no longer had time for the children “because you’re too busy fucking girlfriend”.
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Ms Band concedes that she was verbally and emotionally abusive towards Mr Jervis. She claims that their verbal abuse was mutual and tended to minimise the impact that this had on the children. Furthermore, she tended to minimise her angry rages, justifying behaviour by stating that Mr Band made her angry by ending the relationship and entering a new relationship.
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Ms Band’s (omitted) upon the impact Mr Jervis behaviour had upon her and the children. She stated she experienced emotional difficulties following the separation and found it difficult that Mr Jervis had entered a new relationship. Ms Band’s emphasised the children felt uncomfortable in the presence of Mr Jervis previous partner Ms E highlighting that the children were emotionally and physically collected while in the the care of their father and Ms E.
- Ms G concludes that the conflict between the parents seem to have dissipated since the making of orders in September 2014 and the father ending the relationship with his partner Ms E. Ms G says that the current five nights per fortnight with the father appears to be meeting the children’s needs. She notes that neither parent has raised safety concern for the children in the home of either parent and noted that both parents are heavily involved in extracurricular activities for the children. She says that the children appear to be thriving within a shared care arrangement between their parents.
- Both parties propose an order for equal shared parental responsibility and so it is not necessary to consider whether the presumption contained in s.61DA of the Family Law Act 1975 (Cth) is rebutted.
- Once the order for equal shared parental responsibility is made s.65DA requires the court to consider whether equal time with each parent would be in the children’s best interests and reasonably practicable and if not equal time then whether substantial and significant time would be in the children’s best interests and reasonably practicable.
- Section 60CA provides that the best interests of the child are the paramount consideration in making parenting orders. The considerations in determining what are in a child’s best interests are in s.60CC.
- The first of the primary best interest considerations is the benefit to the children of a meaningful relationship with each parent. Each parent acknowledges the children have a strong and rewarding relationship with each parent. The family consultant’s observations confirm this.
- Since neither parent is presenting concern for the safety of the children with the other parent the second of the primary considerations is not relevant.
- The first of the additional considerations is the views of the children. To Ms G X described his current parenting arrangement as “good”. Ms G says that X understood his mother did not want him spending any more time with his father as she held concerns regarding his father entering a new relationship. X said he was concerned about his mother’s feelings and wanted her to be happy with any future parenting arrangements.
- Ms G says that X may have been overly exposed to his mother’s views on issues and was motivated to advocate for a parenting arrangement which may make his mother happy.
- Y described a positive relationship with each parent. She stated she did not want to spend more time at her father’s home as she would miss her dogs.
- The evidence is that the children do not want an increase in time, but there are caveats in both cases. X may be overly influenced by his mother’s views and Y is eight and so what she says must be considered in that context.
- The next consideration is the relationship of the children with each parent and other persons. Both parents are very involved in the children’s lives with strong relationships with them. Since separation the children have been cared for by their mother to a greater extent than their father. There have been times when the father’s attention to the children was distracted by his relationship with his then current girlfriend.
- The next consideration is the extent to which each of the parents have participated in major long-term decision making and spending time communicating with the child. There is no evidence about how decisions about the children’s school were made. The father has been spending time with the children on a regular basis since separation.
- The next consideration is the extent to which each of the children’s parents has fulfilled or failed to fulfil the parent’s obligation to maintain the child. The father has minimal income and so pays no child-support. He applied for and obtained his entitlement to an education bonus and spent little on the children’s education.
- The next consideration is the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs. The current arrangement suits the children‘s emotional and intellectual needs. Each parent is involved in the care and so is contributing to this provision.
- The family consultant recommended equal time. She notes that it appears the parental separation and the father’s choosing to establish a new relationship was difficult for the parents and the children. She says this transition had a significant impact on the children as the father’s partner was introduced to the children possibly too early into the relationship.
- Ms G notes that the parents are in dispute about whether the children spend either five nights or seven nights each fortnight with the father. She said there is no significant practical difference between the children spending an extra night with their father per week. Her oral evidence is that six nights per fortnight would be all right. She recommends block time to avoid the constant changing that the mother’s proposal recommends.
- Both parents are involved significantly in the children’s extracurricular activities. The children spending each Friday night with the father means that for X in particular his father will be taking him to his sport commitment on Saturday morning. The mother is opposed to the block time because she is concerned that there may be some behaviour by the father which the children found unsettling. Evidence of what occurred in the past shows that what the children may find unsettling is if the father introduces a new partner. The mother’s proposal means that the children in one week would spend Wednesday night and Friday night with their father and the one night in between, Thursday, with the mother.
- The current arrangement suits the children and to the extent that their views can be taken into account they have not expressed a desire for more time with the father. The mother’s proposal would, in 2017 leave the children’s routine as it is except for the addition of a Friday night in each fortnight. Overall, I am satisfied that the mother’s proposal meets the children’s best interests.
- I am required to consider the reasonably practicable considerations. These are contained in s.65DAA(5) The parents live close enough so that any of the proposals put by them will work. The second and third of the reasonably practicable considerations are the parent’s current and future ability to implement the arrangement and their current and future capacity to communicate to resolve difficulties that might arise implementing the arrangement.
- After separation and until the implementation of the current orders the parent’s ability to meet these considerations was limited. Their communication has improved but they remain in dispute about many matters relating to their relationship and the separation. They have been able to implement the current arrangement and to communicate to resolve difficulties. The extra day will not affect this.