FATHER WANTS TO SPEND TIME WITH HIS CHILDREN DURING HIS DAYS OFF�
Woodby & Joye [2020] FCCA 2906 (6 October 2020)
Facts:
This is an interim application concerning the time that three children are to spend with their father. The children are X, who is 11 and a half, Y, who is 10 and a half, and Z, who is eight and a half.
The father seeks orders that the children spend time with him every second batch of his four days off, that would mean that on a four-day roster the children would spend four nights out of 16 with him, that is 25 per cent of the nights.
Because his roster is four days on/four days off roster it is not coordinated with the school week, which would mean that sometimes the children would be spending time with the father on the weekend and sometimes the children would be spending time with him during the week, with the apparent disorganisation or inconvenience it would be of the children moving households during the school week. That is notoriously a difficult arrangement to make work properly, even with parents who are fully cooperative, and in this case there is nothing to indicate to me that these parents are fully cooperative.
The other issue is that in the case of the older boys, X and Y, they both identified to the family consultant that they did not like the father’s apartment, particularly in contrast to where they had lived, which provided plenty of space for physical and outdoor activities. X, for example, said that he would like to do more weekend activities with his father, such as camping and fishing; in other words, getting outdoors. Y was somewhat of the same view. He was reluctant to spend time with his father outside weekends but that appeared to have reflected his mother’s view. In any event, Y was ambivalent about spending any midweek time with his father. Z said that she enjoyed her weekend time with the father, particularly camping and fishing.
Issue: Should the court grant the orders sought by the father?
Held:
The court is not satisfied that the father’s proposal, which would see the children spending time with their father according to a reasonably complex revolving roster, sometimes on the weekends and sometimes during the week, is appropriate for these children or in their best interests. It would appear to the court that, if the father’s proposal was adopted, the children would be spending most of their time with the father during the week while they were going to school. The court is not satisfied that that is an arrangement that is in their best interest.
Conclusion: The court, therefore, propose to adopt the mother’s proposal, which will see the children spend time with the father on the weekends when he is not rostered to work.
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I'm interested in people's opinion as to why it would not be either appropriate or in the 'children's best interests' to spend time with their parent during weekdays after work?
If there is a legal reference that supports your own stance (noting that I've read the case-law), I'd be interested to hear it.
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In this particular case the reasons given were :
1. They are interim orders only;
2. Tyrany of distance (the father now lives in City, the mother in the rural property);
3. Z (8, F) sleeps with her father in the other bedroom.
4. Roster it is not coordinated with the school week (note the distance issue);
5. Nothing to indicate to me that these parents are fully cooperative;
6. Older boys, X and Y, they both identified to the family consultant that they did not like the father’s apartment.
The above are the factors in this case that weighed against the father's proposal. -
So, in your opinion Danny, if everything else was the same but the father had a consistent schedule that included weekends, do you think the Judge would have made a different ruling?
The distance is easily overcome.
Interim orders make it easy for review if things go pear-shape.
Having the youngest child in the father's room is akin to being in a caravan.
Animosity between idiot parents seems to be the norm.
Boys X and Y sound entitled and need more time with their father so they can better appreciate what he is able to provide and might be doing the best he can.
'Significant and meaningful time' is the issue here and I'm interested to understand what you and your member would consider to be equal to 'significant and meaningful'. I know what the FLA says and the exact definitions; however, there seems to be some disparities in how litigants express their abilities to meet a 'standard of time' that would be seen to be in the child's best interest.
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My take on it is that distance was an issue when the father's days off coincided with school days and yes if it were not 4 days but 5 (M-F) then it would have made a difference.
I'm not sure if your caravan analogy helps much as that is not ideal accomodation and from numerous cases there appears to be a consistent desire of the Court for the children to at least have their own room to sleep in.
The conflict between the parents becomes an issue often where the lack of will to try work things out often results in the Court being forced to pick one or the other or at least weigh all factors with that in mind.
In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J at paragraph 26 described a meaningful relationship as one “which is important, significant and valuable to the child”, observing that the word meaningful is “a qualitative adjective, not strictly a quantitative one”. This is consistent with the definition of “significant and meaningful time” in s 65DAA of the Act.
The Full Court in McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 agreed with Brown J’s observations as to the nature of a meaningful relationship and considered three possible approaches to s 60CC(2)(a) at paragraph 118 preferring what it described as the prospective approach which requires the court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”.
The Full Court also said at paragraph 119 that depending upon the factual circumstances of the particular case the “present relationship approach”, which involves making findings as to the nature of the child’s relationship with both of the child’s parents as at the date of the hearing, findings which are ultimately reflected in the orders, may also be relevant.
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Danny, great info. Makes sense to me.
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In WENZ & ALBERG [2018] FCCA 2765, significant family violence was claimed through false statements made by the mother to the Police in order to block time with the father (a common punishment or inducement to agree to certain property issues). Notwithstanding, Goode v Goode [2006] FamCA 1346 at [65] provided an excellent summation of the importance of 'time' and a short exert is as follows:
7. The concept of “substantial and significant” time is
defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays;
and
(b) the time the child spends with the parent allows the
parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular
significance to the child; and
(c) the time the child spends with the parent allows the
child to be involved in occasions and events that are of
special significance to the parent.In my study where DV is claimed with no evidence other than an Affidavit of the affected parent, Goode v Goode has featured prominently as has Rice & Asplund.
It is my current position that, at it's simplest, Goode is best served (where equal time and equal shared parental responsibility has been established by way of Order) by each parent having equal access to weekday and weekend time (7 and 7). In doing so, the extra-curricular activities that school-age children undertake during the week and on weekends will, in most cases, be attended equally by the parents (unless agreed otherwise for unforeseen circumstances etc) which is 'in the child's best interests' as there is a balanced parenting approach.
Even a departure from R&A appears to favour the balanced approach in lieu of particular impediments such as what you've discussed, eloquently, above.
Where my difficulty arises is when children are being traded as 'property' ie: extra time will be given if certain property issues are dealt with in the favour of one parent over the other.
I am also interested in your (and others) opinions on how one would overcome an application-in-a-case under R&A where all things are Ordered to be equal, but one parent has no desire to have 'significant and meaningful time' as it applies to Goode.
It's a strange proposition which would beg the question: why would one parent not want meaningful time with their children when there is absolutely no impediment other than a lack of desire?
If you (any of you) were arguing for this absentee-parent, what would be your 'go to' argument/s??
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Goode v Goode is the seminal case for dealing with such matters, so any argument involving equal shared parental responsibility and the child’s best interests will often cite this case.
As the Children get older their own views will be considered by the Court so the argument will be what is important, significant and valuable to the child, therefore any arguments ought to be Child focussed and what is in their best interests.
As meaningful is a qualitative adjective, not strictly a quantitative one it lends to the argument that significant and meaningful time is about quality time as much as it is quantity and this is why the wishes expressed by the Children become more and more valueable as they get older.
This is why the Court may take the “present relationship approach”, which involves making findings as to the nature of the child’s relationship with both of the child’s parents as at the date of the hearing, findings which are ultimately reflected in the orders, may also be relevant.
Disclaimer.
Any such arguments really must be discussed with your lawyer as we are getting into complex areas of law that you would not want to try argue without legal advice and for the record none of the above should be construed as legal advice, it is purely legal information extracted from case law for you to consider talking to your lawyer about.
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