12 Dec Family Court orders equal time with kids

In the case of Blatch (No 5) [2022] FedCFamC1F 651 (31 August 2022) the court made orders gradually increasing the father’s time with the children to equal time but also ordered him to get up to date with his child support.

Background

The parties commenced living together in 2003 and married in 2005. They have two children, both girls aged 10 and 12 respectively. They separated in 2018 but remained living separately in the family home.

This arrangement remained until an incident between the parties which resulted in the father being charged with assaulting the mother and a domestic violence order against the father. Following this, the father remained living in the family home and the mother and children lived with her parents.

The father’s conviction of charges relating to this incident was later quashed on appeal, and the domestic violence order set aside. In the appeal against his charges, the court raised concerns that the mother’s evidence about what happened was unreliable. Specifically, she said that he had picked her up and slammed her to the floor on her back.

The father said he had taken her phone and she was attempting to take it back from him and he pushed her off in self- defence, resulting in her falling on her behind. The court preferred the father’s evidence about what happened, and bruising caused to the mother was consistent with a fall on her behind.

After this incident, the mother refused to allow the father to spend time with the children. For a period of some years, he attempted through various lawyers to negotiate re-establishing time with the children without success. He then initiated court proceedings in 2021 for parenting orders.

Legal proceedings

In these court proceedings, the father sought orders for equal shared parental responsibility and a gradual time increase with the children over 6 months to an eventual equal time arrangement. The mother sought sole parental responsibility and that the children spend no time with and have no communication with the father. Alternatively, she sought that the children’s time with their father be supervised.

The court was aided by the evidence of an expert family report writer and made several findings of fact including:

• There was one incident of family violence, the alleged physical assault. The court considered that both the mother and father bore some responsibility for this incident.
• There were no incidents of family violence before this. While living together separated, the parties argued with each other and were both verbally abusive to each other.
• The mother and father were high conflict and set in their negative views about the other and unable to agree on parenting arrangements.
• The children wished to spend more time with the father and enjoyed a positive and loving relationship with him, unaffected by any conflict that occurred between the parents.
• Social science studies indicate that children who have meaningful relationships with each parent after separation do better later in life.
• The time spent between the father and children that was observed by others was very positive.

Legal Reasoning

The mother’s position was that the children suffered harm as a result of being exposed to family violence committed by the father toward the mother and that they risk being exposed to violence in the care of their father.

The court rejected this proposition. Based on the evidence of the family report writer, the court accepted that the harm caused to the children and any risk of further harm, stemmed from the intractable conflict between their parents rather than from family violence.

The court considered that both parents failed to take responsibility for their contributions to this risk caused by their continuing conflict.

The children’s views were clearly that they wished to have more time with their father, including overnight and holiday time and this was given considerable weight by the court. The children’s positive relationship with their father observed by the family report writer and his capacity to provide for their needs were also considered in his favour.

Outcome

The court made orders that the children would increase time with the father over several months, up to an equal time arrangement with each parent.

The court however, awarded sole parental responsibility to the mother as it considered that the parents were unable to agree to such an extent that it would be impractical for them to share parental responsibility.

The court also ordered that the father was to pay his outstanding child support, and to contribute half of the private school fees paid by the mother for the children.
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