“Primary Carer” – language friend or foe?
- Through her solicitor, the wife asserted that she was the “primary carer” of the children and that they were “attached” to her. The bald statements were not much help as those statements have different meanings to different people and can minimise, if not ignore, the role of the other parent. I am not entirely sure what the wife’s view was of the role of the husband. For example, she said that:
When the husband is not at work, I would allow him the time to spend with the children and develop a relationship with him. I would also take the opportunity to do any housework without having to worry about [C].
- Whilst the use of language may have been the choice of the lawyer, I could not ascertain whether it was being asserted that the husband had no role in the lives of the children and had to be encouraged to undertake such a role or whether this statement was simply a reference to the practicalities of sharing the care of the children as both parents worked. When the wife was working, she had the assistance of a day-care arrangement. It is simply an impression but it would seem both parents had professional lives and that each managed the children in different roles. Obviously, the wife had a greater time role than did the husband during the days when the husband was at work but little was said about what happened out of those hours.
- To the extent that the wife’s evidence minimised the husband’s role by her reference to his working duties, there is a difficulty because he provided a long list of complaints and allegations about the wife as a parent which indicated that he was involved in the lives of the children. These matters require investigation and accordingly, what I am required to decide here is a holding position for these children.
- Section 61DA requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. I am unable to make findings about family violence or what might be in the longer term best interests of these children such as to justify a rebuttal, removal or non-application of the presumption. More importantly, s 61DA(3) provides that a court does not have to make such a determination in an interim matter where it would not be appropriate in the circumstances for the presumption to be applied. The absence of evidence of a significant import, the disputed facts and the unknown nature of the relationships of the children with each of the parents means that it is not appropriate to apply the presumption. It is also of significance that there is little trust between the parties as is evident by their accusations against each other but also the wife’s views about the husband’s motivations. That can to some extent be ameliorated by the consent orders concerning restricting movement but also by permitting short term stays for the children with each parent. Whilst something will need to be sorted out soon because of school, it was not suggested that there was any dispute requiring orders to alter the joint responsibility. I have concluded that the parties will resolve that themselves.
- Without the presumption to consider, the issue of best interests falls to be determined according to the s 60CC considerations. Having examined those and found they do not assist such as for example the nature of the relationship of the children with persons other than the parents, I am very much at large to balance what evidence I can rely upon to decide what should happen in the short term.
- I am able to find:
- Both parents have been involved significantly with these children even if for different time periods and in different roles;
- The children (according to the wife’s evidence) desire to see her but also seem to enjoy being with the husband;
- The wife has accommodation albeit of a temporary nature and which seems suitable for the children and the husband is currently living with his parents who are supportive;
- Neither party has indicated any specific plans for the foreseeable future affecting the children such that B can be put in a local school at least until the matter can be looked again; and
- The husband will be co-operative about financing of the children’s immediate needs.
- I can find no good reason why these children should not be shared on a rolling three day basis. There is no scientific approach involved in saying three days but each seemed to want the children not to be away from the other for very long periods. Should the State welfare authorities be concerned about the children being cared for either parent, they can take such action as they consider appropriate but to assist them, they should have access to these reasons. To the extent that a sharing arrangement affects schooling, the matter can come back to court and if so, the parties will need to explain why the court should contemplate equal sharing of parental responsibility if they cannot work out such an important issue in their children’s lives. Orders should be made accordingly.