Family Court: tension in balancing children’s matters
A recent Family Court case pointed out
the tension between, on the one hand, the capacity, indeed the duties of Courts considering parenting orders, firstly, to make the orders found to be in the best interests of the children, irrespective of the orders sought by each party and, secondly, to follow the “legislative pathway”, which may involve compulsory consideration of equal time and substantial and significant time for children with each parent and, on the other hand;
the many pragmatic and forensic reasons for hearing a case within the parameters set by the parties.
In Whisler and Whisler each of the parties tired of week about care of the children. Each sought that the children live primarily with that parent and have alternate weekends with the other. They had mirror proposals.
The Magistrate rejected week about care, preferring the mother’s approach.
The father’s counsel:
… raises another aspect: the Federal Magistrate should have addressed the “concept” of equal time, not just an arrangement of “week-about”. Asked whether she was suggesting Phipps FM should, for example, of his own selection, have considered “month-about”, [the father’s counsel] answers in the negative, but argues that he should have considered shorter periods of rotating care than week-about, such as 3 days/4days.
As this submission also applies to the argument that the learned Magistrate should have addressed various possibilities of “substantial and significant time”, and in that respect, for reasons that will appear, the argument seems less abstract than in relation to the question of equal time, it will be considered in the following discussion.
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.
Justice Warnick, sitting as the Full Court, while accepting that the magistrate had dealt with substantial and significant care, stated that it was highly desirable that the magistrate, whilst considering the question of substantial and significant time, do so in a clear and discernible manner.