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 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.
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.
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  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
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 :
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:
 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.