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Equal time sought by shift working father!

Equal time sought by shift working father dismissed as it was neither in the child’s best interests nor reasonably practicable – Order made for significant and substantial time, commencement of which to be based on father’s work roster

In Marchand & Mahony [2017] FCWA 67 (6 June 2017) O’Brien J of the Family Court of Western Australia heard an application for equal time with a nine year old son by the father who worked on a rolling roster of two day shifts, followed by two night shifts, then four days off. The mother sought an order that the child live with her and spend alternate weekends with the father provided that he was not rostered to work during that period. Equal shared parental responsibility was agreed. The mother also sought an order that the father ensure that the child attend all extra-curricular activities to which he was enrolled. O’Brien J said (at [18]-[19]):

“As an order for equal shared parental responsibility is to be made, I am required to consider whether the child spending equal time with each of his parents would be in his best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order. … [I]f I do not make an order for the child to spend equal time with each parent I am required to consider whether spending substantial and significant time with each parent would be in his best interests and reasonably practicable. If so, I am required to consider making such an order.”

The court continued (from [37]): “It is common ground between the parties that the child has a meaningful relationship with both of them, that those relationships are important to him and that it is to his benefit that they continue.

[38] … [T]he child is an intelligent and articulate nine year old … [H]e has a good relationship with both parents and that he has expressed a desire to spend more time with the husband. ( … )

[48] The mother says that the child has always lived close to his school, with limited travel requirements. She says that the husband’s proposal will result in the child ‘having significant travel commitments to get to and from school, on a revolving and changing basis’. The parties agreed that the distance between their homes is approximately 34 kilometres and the husband acknowledged that his home was 25 to 30 kilometres from the child’s school. On the wife’s case, the travel time between the husband’s home and the child’s school would be approximately one hour each way; on the husband’s estimation, the trip would take between 30 to 40 minutes each way.

[49] The wife pointed also to the child’s current extra-curricular activities including choir practice, swimming, guitar practice and football. ( … ) ( … )

[56] Taking into account all the matters referred to above, and the nature of the husband’s proposal as to equal time, I conclude that the arrangement proposed by the husband is not in the child’s best interests. While the framework of the husband’s proposal is understandable from his perspective, and demonstrates his willingness to be a ‘full-time parent’ during those parts of his roster when he is not working, it necessarily involves the child in frequent changes between the households of the parties, and changes in his routine revolving around that roster. While the child’s routine in terms of where he would sleep each night would settle into an obvious rhythm, his routine in the sense of his day-to-day activities, both at school and in his extra-curricular pursuits, would frequently change. The proposal would also effect a considerable change in the primary care arrangements which have been in place for the child since his birth.

[57] I also conclude that an order for equal time is not reasonably practicable, bearing in mind the distances involved, the respective work commitments of the parties, the current arrangements for the child’s schooling and extracurricular activities and the arrangements for his care outside school hours.

[58] Notwithstanding those observations, I do consider that an order for the child to spend substantial and significant time (as that term is defined in the Act) with the husband is in the child’s best interests. The child wishes to spend more time with his father and will in my view benefit from arrangements which facilitate a greater level of involvement by the husband in his daily routine other than on weekends, and in any events which are of particular significance to him.

[59] While there are practical difficulties associated with such an arrangement, those difficulties have less impact than would be the case in an equal time arrangement. In my view the benefits to the child of additional time with the husband outweigh the negative impacts of the practical difficulties.

[60] I propose to make orders designed to ensure that to the greatest extent possible, where the husband’s work roster makes him available to the child on weekends the child will be in his care as at present. I propose to alter the current arrangements so as to ensure that the child’s time with the husband on such weekends extends into the school week where that coincides with the husband’s availability.

[61] That availability in turn must be viewed in the context of the structure of the husband’s roster. For the first two days of each working component of his roster, the husband is assigned to dayshift, requiring him to work from 8.00 am to 6.00 pm. For the second two days of each working component of his roster, the husband is assigned to nightshift, requiring him to work from 6.00 pm to 8.00 am.

[62] That in turn means that the husband cannot sensibly be expected to be genuinely available to the child until the afternoon of the first day of each non-working component of his roster, as he will have worked until 8.00 am that day. By the same token, the husband will be fully available to the child on the last day of each non-working component of his roster, as he will not resume work until 8.00 am the following day. The timing of the commencement of the husband’s dayshift, when combined with the child’s starting time at school and the distances involved, lead to a conclusion that the child’s time with the husband should where appropriate end on the afternoon of the last day of each nonworking component of the husband’s roster, rather than the morning of his first day back at work.

[63] Orders of that nature will still require the wife to adapt to the husband’s roster to a certain extent; more so than she would regard as being desirable. I expect, however, that she will recognise that the potential benefit to the child of additional time with the husband outweighs the inconvenience to her. Similarly, I expect the husband to recognise that inconvenience, and that the wife’s resistance to the initial proposal for the arrangements for the child, revolving around his work roster to the extent initially proposed, was not unreasonable.

[64] I consider the wife’s proposal that the husband be obliged to ensure that the child attends his regular extra-curricular activities while in his care to be in the child’s best interests. …” The order for time with the father during school term was:

“3. During school terms, [the child] spend time with the Applicant during each four-day component of his regular work roster on which the Applicant is not rostered to work (“RPO”) as follows:

(a) where the RPO commences on a Thursday, from after school Thursday until 5.00 pm on the following Sunday;

(b) where the RPO commences on a Friday, from after school Friday until after school on the following Monday, or 4.00 pm if the Monday is not a school day;

(c) where the RPO commences on a Saturday, from 4.00 pm on the Saturday until after school on the following Tuesday; and

(d) where the RPO commences on a Sunday, from 4.00 pm on the Sunday until after school on the Monday, or 4.00 pm if the Monday is not a school day.”

 

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