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No 50-50 split on time with parents - Whisler & Whisler - FamCAFC 18 17/2/2010

The Full Court of the Family Court says that "shared care" is NOT substantial and significant; it is the same as the pre-2006 template.

The Full Court of the Family Court has clarified what it means by "shared care" for children after divorce, and it isn't a 50-50 time split between parents. On the contrary, fathers who win "shared parental responsibility" of their children may find they still see them only on alternate weekends, for two hours after school on Wednesdays, and half the school holidays.
Attorney-General Robert McClelland is reviewing the law. Last month, he said fathers should never have been led to believe they were guaranteed a 50-50 time split after a divorce.
The case arose when Mr Whisler - who had been the "house-husband" and stay-at-home dad for two years before separating - appealed against a decision by a federal magistrate to scrap a "week about" arrangement for his children, aged six and four, and replace it with one in which the children lived mainly with their mother and saw their father on alternate weekends, for 2 1/2 hours on Wednesday nights, half the school holidays and on special occasions such as Fathers' Day.
"These orders are clearly for substantial and significant time between father and children," the court said, in part because they include 2 1/2 hours on a Wednesday, meaning the children see their father both on weekends and weeknights.
The Family Court of Australia (FCA), knowing the political tide is turning, apparently feels emboldened to come out in support of angry feminists and mothers' rights groups, and their dogma of presumptive maternal custody. The FCA appears to be seeking to dismiss shared parenting and to add its contribution to the rollback of shared parenting and the ongoing privileging of separating/separated mothers over and above fathers and their children. This decision highlights the FCA's gender bias, favouring women.

The FCA appears to be deliberately choosing to misrepresent the intent and operation of the legislation and to stiffle shared parenting and the notion of "substantial and significant time" - by making a mockery of both. Every second weekend, 2 1/2 hours one week night, some special days, and half school holidays, do not constitute "substantial and significant time".  That is the same one-size-fits-all, maternal custody, regime that the FCA was imposing on families before the 2006 family law changes.

Elsewhere CA noted...

The court has not fully embraced the intent of the shared parenting amendments from 2006. Instead it has maintained every second weekend and a couple of hours per week, and half the school holidays, as representative of "substantial and significant time".

The ordinary dictionary meaning of "substantial" is: considerable in quantity; significantly great.
 
The ordinary dictionary definition of "significant" is: having meaning, likely to have purpose and effect.
 
The Courts seem reluctant to take a "literal" approach to the interpretation and practice of the 2006 seem to reverted back to only marginally over the old regime of every second weekend.


No 50-50 split on time with parents

The Australian
23 February 2010

No 50-50 split on time with parents
By Caroline Overington

The Full Court of the Family Court has clarified what it means by "shared care" for children after divorce, and it isn't a 50-50 time split between parents.

On the contrary, fathers who win "shared parental responsibility" of their children may find they still see them only on alternate weekends, for two hours after school on Wednesdays, and half the school holidays.

The decision surprised men's groups, who thought new laws requiring the court to consider shared care meant more than weekends, holidays and special occasions.

"That doesn't sound like the spirit of the new law at all," said Michael Green QC, of the Shared Parenting Council. "There's no way in the world that that is shared parenting."

But Elspeth McInnes of Solo Mums said the decision "reflects reality, which is that equal time, or shared time, cannot work for all couples and shouldn't be forced on them".

The Howard government moved in 2006 to give both parents responsibility for children after divorce. Judges must now at least consider an "equal time" arrangement, and if that is not practicable, then an arrangement in which the children spend "substantial and significant" time with both parents.

Attorney-General Robert McClelland is reviewing the law. Last month, he said fathers should never have been led to believe they were guaranteed a 50-50 time split after a divorce.

The full court weighed into the debate yesterday, releasing its decision in a case known as Whisler and Whisler (2010).

The case arose when Mr Whisler - who had been the "house-husband" and stay-at-home dad for two years before separating - appealed against a decision by a federal magistrate to scrap a "week about" arrangement for his children, aged six and four, and replace it with one in which the children lived mainly with their mother and saw their father on alternate weekends, for 2 1/2 hours on Wednesday nights, half the school holidays and on special occasions such as Fathers' Day.

Mr Whisler complained that the orders did not amount to the children having "substantial and significant time" with him, but in a decision posted yesterday the Full Court said that it did.

"These orders are clearly for substantial and significant time between father and children," the court said, in part because they include 2 1/2 hours on a Wednesday, meaning the children see their father both on weekends and weeknights.

Mr Whisler's lawyer argued that the court should have considered an arrangement in which the children swapped after three or four days with one parent.

The court ruled, however, that it would not necessarily be in the children's best interests to swap around in the middle of a school week.


Whisler & Whisler [2010] FamCAFC 18 - 17/2/2010

Family Court of Australia - Full Court - New Judgments

Whisler & Whisler [2010] FamCAFC 18 - 17/2/2010

Download (90KB) Whisler & Whisler [2010] FamCAFC 18 - 17/2/2010

FAMILY LAW - APPEAL  FROM A DECISION OF A FEDERAL MAGISTRATE  Appeal against parenting and property orders  Challenge to property orders hinged upon the appeal against the parenting orders  Parties conceded that the spousal maintenance order ought be set aside

FAMILY LAW - CHALLENGE IN RELATION TO EQUAL TIME  Appellant challenged the parenting orders on the grounds that the Federal Magistrate failed to properly consider equal time, failed to order equal time when such an order should have been made and failed to give adequate reasons in respect of the decision as to equal time  A week about arrangement was considered by the Federal Magistrate and adequate reasons given for its rejection  Appellant submitted that the Federal Magistrate ought consider the concept of equal time not just a week about arrangement  No alternative proposals achieving equal time were proposed by either party

FAMILY LAW - CHALLENGE IN RELATION TO SUBSTANTIAL AND SIGNIFICANT TIME  Appellant submitted that the Federal Magistrate failed to properly consider substantial and significant time  Consideration given as to whether the orders achieved substantial and significant time with the appellant  Orders made did provide for substantial and significant time  Consideration of substantial and significant fell within the reasoning of best interests considerations  Express reasons would have been desirable  Path of reasoning is discernible and valid  Federal Magistrate is not bound to consider proposals of the Courts own creation where the parties proposals contain arrangements meeting the childs best interests

Order set aside in accordance with the parties concessions  Appeal otherwise dismissed


Attachment
Whisler & Whisler - FamCAFC 18  17/2/2010


A worthwhile explanation of how the new shared parenting legislation should be applied is set out in the paper by Dr Tom Altobelli when he was at Watts McCray family lawyers:

Some Practical Implications of the Family Law Amendment (Shared Parental Responsibility) Bill 2005

Attachment
Tom Altobelli - Some Practical Implications of the Family Law Amendment (Shared Parental Responsibility) Bill 2005

Did Phipps FM err in failing to properly consider substantial and significant time

Did Phipps FM err in failing to properly consider substantial and significant time for the children with the father?

That is a significant part of the judgemnent that needs some consideration.

The judgement [2009]FMCAfam 445 handed down in the Federal Magistrates court on the 8th May 2009 went partially unoticed. Warnick J has now handed down a significant decision in relation to this matter that needs much exploration to determine if the provisions in the Act are adequate and working as intended.
Warnick J said
30. As a preliminary point, I examine the question of whether the orders that his Honour made provide for substantial and significant time for the father with the children. Ms Ben-Simon complained about the orders in terms that suggest they did not amount to substantial and significant time, but made no detailed measurement of the provisions against the terms of s 65DAA(3) of the Act

32. As earlier seen, the orders for the fathers regular periodic time with the children meet the terms of paragraph (a) as they provide for both weekend, holiday and other days of contact.

34. In my view, these orders made are clearly for substantial and significant time between father and children.
The question at hand, that must be dealt with by the SPCA and others,  is whether s65DAA has been correctly interpreted in the context and has the intent of the Act been delivered. If not what words need to be amended to ensure that the intent and spirit of the provisions are implimented. There were other factors in this case in relation to "Best Interest" factors that should be considered.
Warnick J said
16. When the parties, who married in mid-2000, commenced cohabitation, the wife had with her G, her daughter from a previous relationship. She lived with the parties throughout their cohabitation, though spending time with her father.

And

89. [Ms. D] considered the husband somewhat socially isolated. The husband relies significantly on his family for support. He appears to have little social contact outside his family and the children. He does little outside the home and family. The wife on the other hand impressed [Ms D] as personable and outgoing with a positive outlook.

And

40. Thus, his Honour concluded his reasons for the parenting orders. True it is that there is no expressly identified consideration of substantial and significant time. However, that does not mean it was not considered, but since [2010] FamCAFC 18 Reasons Page 11 consideration was, in the circumstances of this case, a mandated step, clear identification of it was highly desirable.

44. Thereafter, as seen, his Honour considered equal time and immediately after, turned to Best interest considerations. Again, as seen, the first paragraph of that consideration recognised that the mothers proposal for the fathers time with the children would provide [t]he benefit to the children of a meaningful relationship
What does the Attorney Generals department authorative Explanatory Memorandum (A lengthy explanation about the way the new Act is to be interpreted) document say about all of this.
The Attorney Generals Explanatory Memorandum said
Advisors

150. Paragraph 63DA(2)(b) places an obligation on advisers to inform the people that if an equal time arrangement is not appropriate, they could consider whether an arrangement where the child spends substantial and significant time with each person would be in the best interests of the child and reasonably practicable. Subsection 63DA(4) makes it clear what substantial and significant time means and that it includes a variety of days including days that fall on weekends and holidays and other days. It ensures that both parents can participate in a childs routine and in events of significance to the child such as sporting events, birthdays, or concerts. It would also ensure that the child is able to participate in events significant to the parents such as birthdays or fathers or mothers day.

156. The note at the end of subsection 63DA(2) makes clear that an adviser must only inform people that they could consider the options of the child spending equal time and substantial and significant time with each person. It does not require the adviser to provide legal advice as to whether such arrangements are practicable or in the best interests of the child. However, the adviser may provide advice if that is appropriate.

157. New subsections 63DA(3) and (4) explain what is meant by substantial and significant time. It ensures that the focus is not just on the amount of time that each parent spends with the child but also on the type of time that is spent. The definition is to encourage people to ensure that there is a mix of holidays, weekends and other days and that both parents are able to participate in the childs daily routine and in events that are significant to the child (like sporting events, birthdays and concerts). It also ensures that the child is able to participate in events significant to the parent such as mothers or fathers day, extended family weddings or christenings and birthdays.

Item 31  After section 65D

Section 65DAA  Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

183. Section 65DAA is a new provision about circumstances where the court is to consider children spending either equal and if not equal then substantial and significant time with both a childs parents.

184. Subsection 65DAA(1) implements recommendations 4 and 5 of the LACA Committee. It provides a new requirement that the court must consider making an order that a child spend equal time with each parent, if a parenting order provides or is to provide the parents with equal shared parental responsibility for the child. This provision is not a presumption 50:50 of joint custody. That approach was rejected by the FCAC. The court must consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with the parents.

185. Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the child remain the paramount consideration for parenting orders. This is set out in section 60CA by item 9.

186. Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days. It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts. It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mothers or fathers day,  birthdays.

187. Subsection 65DAA(4) makes it clear that the court can have regard to other things when deciding what is substantial and significant time. This will allow the court flexibility in determining for each unique case in the best interests of the child to determine what the significant events are for that child and parent and what would constitute substantial time. For some children it may include things related to religious or cultural events.

188. Section 65DAA(2)-(4) is intended to ensure that the courts consider arrangements that are much more than one weekend a fortnight and half of the holidays or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared parental responsibility that this will generally involve both parents spending both substantial and significant time with their children.

189. Subsection 65DAA(5) sets out factors that the court should consider in determining whether both equal or substantial and significant time are reasonably practicable. These factors originate from case law, including the case of T and N (2001) FMCAfam 222. The inclusion of the factors was recommended by the Family Law Council which considered 2004 research by the Australian Institute of Family Studies entitled, Research Report No 9: Parent-Child Contact and Post Separation Parenting Arrangements.

190. Paragraph 65DAA(5)(a) provides that the court consider the proximity of the residence of the parents. It will obviously be less practical to share care in situations where the parents live in different countries or large distances away from each other.

191. Paragraph 65DAA(5)(b) is the parents ability, including an assessment of their future ability, to implement the logistical issues associated with shared care. For example, what would the parents do if the child leaves homework at one house? Will the parents readily rectify this problem? The court may decide to make some related orders to send the parties to a program to assist them develop or improve these skills. Note 2 to the provision is a cross reference to this option.

192. Paragraph 65DAA(5)© refers to the parents current and future capacity to communicate and resolve difficulties. This may include a variety of issues including religious adherence, cultural identity, extra curricula activities of the child, methods of discipline, attitude to homework, health and dental care, diet and sleeping patterns.

193. Paragraph 65DAA(5)(d) ensures that there is a child focus to the decision and ensures that account is taken of the childs age, views (including factors that may have influenced those views) and the general benefit to the child of this type of arrangement
In this particular case the Federal Magistrate, to his credit, went straight to the heart of the matter and looked closely at each of the provisions around time sharing.

He did this without anything on the table from the fathers solicitor in respect to any other permutation of time sharing.

29. For the present, I simply record that no party sought or even raised any other arrangement for equal sharing and there was no evidence directed to such arrangements and their consequences, such as changeovers in the middle of the school week.

This is important as neither parent had any other time share offers on the table.

He appears to have complied with the letter of the law in that each of the four provisions was looked at in some depth,  but has he done enough to meet the Attorney Generals Explanatory notes on how the Act is to be delivered.
Warnick J said
70. Section 65DAA then requires that the court must consider whether equal time with each parent would be in the children's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the children's best interests and reasonably practical.

74. Section 65DAA sets out the matters the court must have regard to in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child's parents.

75. The first is how far apart parents live. The parents at the moment live four kilometres apart. Travel between the two homes and to [L]'s school is easily done.

76. The next two matters are the parent's current and future capacity to implement the arrangement and capacity to communicate with each other and resolve difficulties that might arise.

77. [Ms D] said that the spousal relationship seems to be characterized by quite different expectations in each spouse, expectations not met by the other. She said the parental relationship seems to be marked by poor communication stemming from the long term spousal difficulties. [Ms. D] concluded that for these reasons there is now no post separation cooperative parental relationship.

78. Events during the time leading up to the final separation confirm this. The relationship broke down, but the parties could not reach agreement on how they would deal with the breakdown. The wife wanted the husband to leave the house. He did not want to.

Eventually, events came to a head and he left. The parties have different parenting styles. The husband said to [Ms D] that his approach was that kids have to have boundaries. He considered that with the mother discipline is not there. This encapsulates the different parenting styles. The husband has a disciplined approach while the wife has a freer approach.

79. The requirements that the parents have the capacity to implement the arrangement and to communicate are not met in this case.

80. The fourth of the considerations is the impact the arrangement would have on the children. [Ms. D] considered that a secure base is important for the children. The husband said specifically to [Ms. D] that the current routine of week about was not good for the children. The wife concurs. This requirement is not met.

81. Consequently, an equal time arrangement is not practicable.
His Honour ultimately ordered that the parties have equal shared parental responsibility, and that their two children, L, then six and W, then four and a half, live with the mother, spending time with the father each alternate weekend, Friday after school until Monday before school, for some hours each Wednesday, for half school holidays and on special occasions.

The orders made are greater than the old 80 / 20 rule, which was put to rest in 2006 with the introduction of the new Shared Parenting Act as it is referred to, but are they adequate enough?
Warnick J said
Thereafter, as seen, his Honour considered equal time and immediately after, turned to Best interest considerations. Again, as seen, the first paragraph of that consideration recognised that the mothers proposal for the fathers time with the children would provide [t]he benefit to the children of a meaningful relationship.

45. This progression, joined to the fact that the orders did provide for substantial and significant time in my view, rebuts the proposition that his Honour failed to consider substantial and significant time.

46. But, as seen, Ms Ben-Simon poses the argument that his Honour should have considered other and more extensive arrangements.

47. Touching upon this aspect of a Courts function when considering parenting orders, Gummow and Callinan JJ said in U v U (2002) 211 CLR 238 at [80]:

But the court is not, on any view, bound by the proposals of the parties.

The court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.

48. However, this statement does not suggest that the proposals of the parties are irrelevant to the courts enquiries or that the court must always consider alternative proposals of its own creation. Indeed, two sentences before the
above statement, their Honours said:

[2010] FamCAFC 18 Reasons Page 12 We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties.
When we look at the AG's Explanatory Memorandum clearly there are some words that give a "weighting" to "substantial" and "significant" and it is this that needs great consideration.

Also of great importanace in the memorandum that is at odds with the above and interesting point made by Warnick J 55. The duty on Phipps FM was to make orders in the childrens best interests. Unless he considered that none of the orders posited by the parties would achieve that object, he was not bound to put forward his own proposals. On this point I don't agree. The onus is on the presiding judicial officer to determine an appropriate arrangement where the parties have not provided one.

185. Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the child remain the paramount consideration for parenting orders. This is set out in section 60CA by item 9. certainly, in my view, 60CA was not dealt with adequately as the parties did not have an alternate plan on the table and the Explanatory Memorandum lends weight here.

In relation to the key points "substantial" and "significant" in relating to time. The Attorney Generals Memorandum is very clear. It ensures that the focus is not just on the amount of time that each parent spends with the child but also on the type of time that is spent. The definition is to encourage people to ensure that there is a mix of holidays, weekends and other days and that both parents are able to participate in the childs daily routine and in events that are significant to the child (like sporting events, birthdays and concerts). It also ensures that the child is able to participate in events significant to the parent such as mothers or fathers day, extended family weddings or christenings and birthdays.

From here we go further into the paragraphs set out above and get a "feeling" that a few hours Wednesday each alterrnate week doesn't cut it. When you look at the definitions of each of those two key words and then read the Attorney Generals Expanatory Memorandum then the Federal Magistrate could have done better. How much better is for conjecture but certainly, on the surface, a dissapointing outcome for this father and hardly in line with the spirit and intention of the legislation where the father had previously enjoyed such significant and substantial time.

I wonder what Federal Magistrate Phipps might say to that.

Executive Secretary - Shared Parenting Council of Australia
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Sec SPCA - I agree very much with you.

I read the appeal and looks like the way the father approached the case influenced the outcome. It was suggesting that the father would not support a good relationship between the children and their mother.

Also the mother apparently had a better personality that would allow the kids to develop greater emotional skills, and the father's relationship with his children was less important than the children's relationship with their older half sibling.

All this after having a week about for such a long time.

What I also found interesting was the legislation test for substantial or significant time. How does a parent be involved in their children's daily lives with every second weekend and a couple of hours on a Wednesday? It's virtually impossible - this care regime nearly removes the parent from the children's education making it very hard for them to help with homework etc…

It's pretty sad that the court had to resort to character assassination to come to a decision.
Thanks for your comments Fairgo. It is interesting to read the determination because the first question is did the Federal Magistrate actually look at 65DAA correctly. A lot of material was provided around this and it is hard to say he didn't and as you say there were a heap of other issues that were compelling enough to go back to "Best interest considerations". I am interested in looking at any additional requirements arising out of this judgement.

Executive Secretary - Shared Parenting Council of Australia
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I am actually with Fairgo on the comment made about involvement in the children's daily lives. (and yes, reading the judgement, I think Fairgo's comments are spot on)

This is what is stated after the highlighted section of para 186 above

It must also include time in daily routine and allow for participation in events that are significant to the child. This might include sporting events, birthdays or concerts.

After school on Friday and before school on Monday DOES NOT equate to "time in daily routine".

And this is what the result will be when the pharasing is qualatative rather than quantative.

How would the general populous like it they were told that they could only spend time with their significant other (for those that like each other that is), every second weekend, a few hours during the week and half of school holidays? Food for thought.
The biggest issue that was raised in this matter, was that both parties opposed a shared parenting arrangement, they both essentially sought an all or nothing outcome. It is a good reminder that while we may have some detrimental thoughts about ex partners, there is a need to do the utmost to put those thoughts aside for the sake of the kids. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Sorry if this seems off topic, but what are the implications of Whistler & Whistler on cases where the applicant has asked for the children to spend time with the applicant under a regime that does not meet the guidelines for substantial and significant time? ie the applicant is (for reasons known only to them) deliberately only requesting weekend and holiday time.




"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:
Would depend upon the reasons and any relevant evidence to support the reasons. There would be no hard and fast answer. Whistler, while it raises some alarm bells isn't a case which has resulted in a legal principle. 

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
Tulip, the applicant can ask for whatever time they are able to accommodate. The Act does not require either parent to request more time than they can accommodate or are wanting.

If the applicant believes they can have a relationship with their children every other weekend and half school holidays then that is likley to be their request. I would have thought any reasonable "other parent" and in this case the respondent, would immediately concede to such a request without the need for a court hearing. Seems a complete waste of time making application for such minimal orders as surely the other parent won't be objecting.

There is no guideline that says you HAVE to have significant and substantial time. Section 65DAA - Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances provisions only kick in if:

1. Orders are being made for equal shared parental responsibility (That must be reubtted if not being made) AND
2. If one or other of the parents requests such time. (If they don't request that time the court will look at what time they are seeking.

If one parent only wants 20% of the time the other will have 80%. It would be interesting if both the applicant and respondent wanted the sort of time as discussed above. The Grandparents or some other family persons would need to make up the difference.

My own view is that sort of time arrangement is not adequate to have a proper relationship with children and the other issue to keep in mind is as the children get older time requirements change depending on schedules like school activities and the childrens own friends and schoolmates.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
I have a child in primary school and their homework cycle runs Monday nights through to Thursday nights.

I can't see how a couple of hours every second Wednesday can constitute significant involvement in the childrens daily routine.

I have one question - was the father represented or self represented?

Also LP is spot on - both parents were at loggerheads - This is why I am asking if the Father was represented or not - if he was the practitioner needs a really big kick up the backside!

Last edit: by Fairgo

Both parties were represented

Fairgo said
I have one question - was the father represented or self represented?
Both parties were represented.

Attachment

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

Confusion

Thanks LP, believe me, it will be very interesting to see the reasons the applicant has for requesting this level of time  :dry:
Secretary SPCA said
If the applicant believes they can have a relationship with their children every other weekend and half school holidays then that is likley to be their request. I would have thought any reasonable "other parent" and in this case the respondent, would immediately concede to such a request without the need for a court hearing. Seems a complete waste of time making application for such minimal orders as surely the other parent won't be objecting.
As the respondent, yes I am agreeing, unfortunately there are other issues that have not been able to be sorted outside the court. Primarily because the applicant has refused to attend mediation. It's a bit hard to negotiate and compromise with an empty space!
Secretary SPCA said
There is no guideline that says you HAVE to have significant and substantial time. Section 65DAA - Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances provisions only kick in if:

1. Orders are being made for equal shared parental responsibility (That must be reubtted if not being made) AND

2. If one or other of the parents requests such time. (If they don't request that time the court will look at what time they are seeking.

If one parent only wants 20% of the time the other will have 80%. It would be interesting if both the applicant and respondent wanted the sort of time as discussed above. The Grandparents or some other family persons would need to make up the difference.
THIS is where I am confused, as equal shared parental responsibility has been requested and will be 'by consent'. Maybe I'm just unable to understand any parent wanting a small amount of time with their children  O_o Not sure what you mean by Grandparents or others "making up the difference"? The children spend time with each set of Grandparents, organised by each parent during their time with the kids.
Secretary SPCA said
My own view is that sort of time arrangement is not adequate to have a proper relationship with children and the other issue to keep in mind is as the children get older time requirements change depending on schedules like school activities and the children's own friends and schoolmates.
And yet the children and the applicant DO have a good relationship, despite the applicant choosing not to involve themselves in schooling, sports, etc.  I have to admit that the antiquated 80:20 rule is actually an improvement - it was 90:10 (for nearly two years before the applicant requested more time). But I guess it takes all sorts of people in this world.

"Decide that you want it more than you are afraid of it."
Bill Cosby
 :thumbs:
Tulip said
Sorry if this seems off topic, but what are the implications of Whistler & Whistler on cases where the applicant has asked for the children to spend time with the applicant under a regime that does not meet the guidelines for substantial and significant time? ie the applicant is (for reasons known only to them) deliberately only requesting weekend and holiday time.
Hey Tulip,

As LP said in this case both the Applicant and the Respondent were seeking exactly the same thing (in favour of themselves). i.e. Both sought Equal Shared Parental Responsibility.  Both sought for the children to live with them and spend time with the other parent.  Both wanted that "spends with time" for the other parent to fall on alternate weekends and each Wednesday for a few hours.  Have a look at the original case attachment posted by Agog.      

Like Sec SPCA said you can put into your orders whatever you want or can accommodate (there are many people who choose to have limited time because of work or other things) but the unfortunate thing here is that both parents had previously had a week about arrangement and for reasons unknown (except in a last minute verbal submission by the father's rep) they had both decided that they did not want that arrangement to continue. 

Shame that these two parents who both seemed to agree on so many things really (just opposite for eachother) couldn't have negotiated their Orders better, but then I'm not one to Judge on that one…to agree you have to have 2 people willing to participate which unfortunately is not always the case!!

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
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The case illustrates the great danger of going into a Court focused on an uncompromising 'all or nothing' position.

Effectively both sides are forcing the Court to concede there is conflict and to rely on legal argument and a decision that one side will be very disappointed with.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
The Judge also said that it's not in the children's best interests to have a mid week handover. I think a couple of hours every second Wednesday would have a worst effect on the kids - after all it is a effectively a mid week handover. A rotation of Wed to Sun in the first week and Wed to Fri in the second week during school terms works very well. I've been doing that for a few years now and the kids look forward to the Wednesday handover and are happy that both parents are involved in their schooling.
We also do changeover on a Wednesday (and again Sat or Sun depending on whose weekend it is) so the children have half a week with each parent. This has worked well for 7 years. It is beneficial for the children as they see each parent frequently. Also, in our case, theirfather does not agree with the children doing any after school activities while they are with him, so at least they get to do them Sun-Wed while they are with me. Its hard/impossible to play in a Band or a sport team, or be a junior guide leader,when you can only go to practice or play a game every second week. So doingone week about would not workwell for the childrenin our case at all, as they would miss out on these important activities.

It also easier for the children to remember where they are going to be on what night when it is the same each week ie. every Sun - Wed I am with mum, every Wed - Fri I am with Dad. So they know always know where they will be and which parent they have to ask about what. It has worked well for the children, and does not require their parents to have a good relationship as their is little opportunity for conflict in relation to both parents agreeing to what activities the children can/can't do.

We also continue this through school hols unless either parent wants to take the kids away for a longer holiday and this is agreed (in writing of course).
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