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WHEN EQUAL TIME NO LONGER FEASIBLE…
Pengleton & Faram [2020] FamCAFC 2 (8 January 2020)
Facts:
Mr. Pengleton (Father) and Ms. Faram (Mother) maintained an equal shared care arrangement of their child without Court orders for four years, even though they were living a driving distance apart. It was until the child reached school age when both parents sought orders providing for the child to live with them and to attend local primary school. However, the trial judge ordered the child to live with Ms. Faram and to spend time with Mr. Pengleton on each alternate weekend, for half school holidays, and identified special days. Mr. Pengleton appealed the order, asserting that the trial judge did not provide adequate reasons as to why equal time was not considered and that the trial judge falsely quoting the family report writer that equal time is not in the best interest of the child.
Issue/s:
- Whether or not the judge erred in not considering equal time for the child to spend with each parent.
- Whether or not the trial judge falsely quoted the expert family report writer.
Held:
Under Section 65DAA of the Family Law Act, the Court shall consider the child spending equal time with each parent with the following circumstances:
- whether the child spending equal time with each of the parents would be in the best interests of the child; and
- whether the child spending equal time with each of the parents is reasonably practicable.
In the case, the trial judge observed that equal time is not practical for the child as they live too far apart, considering that each party proposed that they will continue to live where they have chosen to live.
On the other hand, Mr. Pengleton criticized the trial judge’s approach to the evidence of the family report writer on the matter of the child’s best interests, as it appeared that he proceeded n the foundation that the trial judge was somehow bound to accept and act upon, the evidence of the expert. It was in the expert family report writer’s opinion that both parties’ proposals are in the best interests of the child yet significant to the child. Many court decisions have emphasized that the evidence of an expert does not bind a trial judge. A trial judge has the discretion on whether to consider an expert’s evidence. Mr. Pengleton’s contention that the trial judge misquoted the expert was not tenable because it is essentially a matter for the trial judge to determine which is in the best interests of the child.
The Court dismissed the appeal on the basis that the grounds raised by Mr. Pengleton did not have substance.
The equal shared care arrangement enjoyed by the parties was convenient until their child was to attend school. The court will order equal time when it finds that it is practical and is in the child’s best interests. The facts of the case at hand, however, shows otherwise. The arrangement was found unpractical and not in the best interest of the child. The court will, first and foremost, consider the welfare of the child. When equal time is no longer feasible for the child’s best interests, the court will issue orders that will be favorable to the child welfare based on the evidence the parties present.