Alley and Alley - [2012] FMCAfam 895

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALLEY & ALLEY

[2012] FMCAfam 895

FAMILY LAW – Interim arrangements for care of child aged 4 years and 10 months – parties separated in difficult circumstances in January 2012 – mother left the former family home – child has remained in care of father since parties separated – mother alleges father has restricted her access to child as a means to coerce her – dispute as to who of the parties has historically been child’s primary carer – father alleges mother is emotionally unstable and has been violent towards him – nature of family violence – presumption of equal shared parental responsibility – benefits for child of meaningful parental relationships – best interest – nature of interim hearing.

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MS ALLEY

Respondent:

MR ALLEY

File Number:

ADC 1711 of 2012

Judgment of:

Brown FM

Hearing date:

6 July 2012

Date of Last Submission:

6 July 2012

Delivered at:

Adelaide

Delivered on:

6 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms Ross

Solicitors for the Applicant:

Jane Ekin-Smith

Counsel for the Respondent:

Mr Noble

Solicitors for the Respondent:

Duncan Basheer Hannon

ORDERS

The matter is fixed for final hearing before Federal Magistrate Brown on 4 & 5 December 2012 at 10:00am NOTING 2 days allowed.

On or before 20 November 2102 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.

The applicant file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 November 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 20 November 2012.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 5 October 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The child X born (omitted) 2007 live with his parents as follows:
(a)With the mother:
(i)On Saturday 7 July 2012 from 9:00am until 4:30pm;
(ii)From after kindergarten or 12:00pm in the event that kindergarten is not in session on each Friday until 2:00pm Saturday commencing on 13 July 2012;
(iii)Each Monday from after kindergarten or 3:00pm in the event that kindergarten is not in session until 6:00pm; and
(iv)Each Wednesday from 9:00am until 4:30pm.
With the mother to collect the child from the kindergarten wherever possible otherwise the child is to be exchanged at the Coles Supermarket located at the (omitted) Shopping Centre, (omitted) or such other location as agreed between the parties.
(b)With the father at all other times.
The parties be restrained and an injunction is hereby granted restraining them from abusing, assaulting, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
Orders 2, 3, 4 and 5 of the orders made on 27 June 2012 continue.
The parties do all things necessary to participate in a Family Dispute Resolution Conference to be held at the Legal Services Commission to be arranged by the parties’ solicitors on a date and time to be agreed between them but following the release of the family report herein.

IT IS NOTED that publication of this judgment under the pseudonym Alley & Alley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 1711 of 2012

MS ALLEY

Applicant

And

MR ALLEY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally immediately following the interim hearing. Given the case is proceeding further and remains controversial, it is appropriate that the reasons be transcribed and released to each of the parties.
These proceedings are concerned with interim arrangements for the care of a child, X, who was born on (omitted) 2007.
The parties to the proceedings are X’s parents – his mother Ms Alley and his father, Mr Alley. Ms Alley was born in the (omitted) on (omitted) 1981. Mr Alley was born on (omitted) 1969. As he is an Australian citizen, I assume he was born in Australia.
The parties met in (omitted) in 2005. They married on (omitted) 2007 in Adelaide. They have lived together in the (omitted) and (omitted). They finally separated around Australia Day in 2012. This was the day on which the mother was granted Australian citizenship, after having been sponsored by members of the father’s family.
The father became ill with non-Hodgkin’s lymphoma prior to X’s birth in 2007. He came to Australia for treatment. The mother came to Australia in August of 2007 shortly prior to X’s birth. X was born in this country. The family has lived in Australia ever since.
The parties and X, after his birth, lived at Property F. This property is owned by the father’s sister. X has lived there all of his life to date. When the parties separated, the mother left the Property F property. X remained in the home with the father.
The circumstances surrounding this event are controversial. Also controversial is the nature of the parties’ relationship during their marriage and who of them was more involved with caring for and parenting X.
This is an interim hearing. It takes place in a shortened form against a background of urgency. As such, there is no time for the cross-examination of the parties concerned and so it is difficult, if not impossible, for the court to resolve disputed issues of fact.
In this case, there are many disputes of fact. The appropriate forum for resolving disputed issues of fact is the final hearing. Necessarily, that final hearing, if needed, will be several months away. In addition, by the final hearing stage, the parties are likely to be in a better position to put forward their respective cases in a more thorough and detailed manner.
In addition, at the final hearing stage, it is likely that there will be a detailed and independent assessment of X’s needs and the nature of his relationship with each of his parents. This assessment will be prepared by a psychologist, who will have observed X with his mother and father. In this jurisdiction, such an assessment is commonly called a family report.
Accordingly, the final hearing is a more comprehensive hearing than the interim one. At the final stage, there will be more detailed evidence available to the court. In particular, each party’s evidence will be tested through cross-examination. As such, the court will be better placed to make findings as to what did or did not happen in the past between them. A family report will also be to hand.
However, notwithstanding the evidentiary difficulties arising in this case, it is still necessary for the court to make a decision and put in place the arrangements for X’s care, which it considers at this stage will best serve his interests, until there can be a more thorough and comprehensive hearing undertaken, at which more evidence is will be to hand.
The mother commenced these proceedings on 9 May 2012. She seeks the following orders. At the interim stage, she seeks an order that X be delivered up to her. Thereafter, she wants an order that the child live with her and spend time with his father on two occasions per week for three hours on each occasion, at specific dates and times to be agreed.
On a final stage, she proposes that the parties share parental responsibility for X but that he continue to live with her and spend time with his father at dates and times to be agreed between the parties.
The father responded to this application on 22 June 2012. At the interim stage, the father proposes that the parties have equal shared parental responsibility for X but that X continued to live with him. He also proposes that the mother spend time with X once per fortnight at the (omitted) Children's Contact Centre.
At the final stage, the father proposes that the parties continue to have equal shared parental responsibility for X. However, he does not have well considered proposal for X’s long term and essentially he proposes that the interim orders, which he seeks, be made on a final basis.
Given the mother’s origins in the (omitted), where she continues to have family connections, he also sought orders, at both an interim and final stage, that the child’s name be placed on the Airport Watch List maintained by the Australian Federal Police at each international airport in this country. Such an order would prevent the child leaving Australia.
Accordingly, on the face of the papers each party has filed, their positions are polarised in the extreme. Each party seeks an order that X should live primarily with him or her and that the other parent should have only limited time with X.
Interestingly, given this dichotomy, the father proposes that the parties should have equal shared parental responsibility. Although the mother’s application is not put with any great degree of legal precision, it would appear to be the case that she too agrees that the presumption arising under section 61DA of the Family Law Act should apply at the final hearing stage.
In any event, I suspect that the parties have not closely considered issues of parental responsibility, certainly not how in the future they will exercise responsibility for X’s parenting.
Rather, they are locked in a struggle as to who of them X should primarily live with. This dispute centres on their very different views as to what occurred in their relationship together and afterwards.
These disputes can be summarised as follows:
·During the parties’ relationship, the mother asserts that the father had difficulty in controlling his temper and was frequently verbally abusive towards her.
·More recently, she says the father has thrown the contents of a bottle of sweet and sour sauce over her and on another occasion, the next day, a tepid cup of coffee.
·It is also her case that because of issues to do with his temper, the father has yelled at X.
·In terms of what happened at separation, she says that, in January 2012, the father pushed her out of the former matrimonial home because he wanted his girlfriend to move in.
On the other hand, it is the father’s position that it is the mother who was the violent and unstable person during the parties’ relationship and afterwards.
In particular, he complains that there was a series incident in 2009, when he returned to the home from a business trip to (omitted), when the mother threatened him with a knife. The police were called to this altercation which, on the father’s case, was totally instigated by the mother.
The father says that although the police were involved in the matter, he did not proceed with a formal police charge because he thought his wife might be deported and his father would lose $30,000 which had been lodged as security in connection with the mother’s application for a visa to remain in this country.
The father also says that the mother was verbally abusive towards him. It is she, he says, who has mood swings. He asserts she is pathologically jealous and believes he has been involved with other women, when this is not the case.
Essentially, each party says that the other is mentally unstable and so, by necessary implication, an inappropriate role model for X. The father also asserts that X has been emotionally traumatised by more recent violent actions of his mother.
In terms of what happed when the parties separated, Mr Alley asserts that he was totally taken by surprise by the mother’s decision to end their relationship. As such, he now asserts that the mother has cynically used him and his family to obtain Australian citizenship.
Thereafter, it is his position that the mother was content to leave X in his care as this is what had more usually taken place during the parties’ relationship. He refutes any suggestion that he forced the mother from the household. This view is supported by a statutory declaration provided by his father, Mr Alley.
The impression given by the mother’s affidavit material is that the father is a controlling person who did, indeed, force her from the home by his escalating coercive conduct. More importantly, it is her case that in the period since the parties separated, the father has restricted her access to X, allowing time to occur only in circumstances entirely controlled by him.
She says that Mr Alley entirely cut off her time with X, after she commenced these proceedings. Again, it is the underpinning of her case that that the father has used X as a means of either punishing her or intimidating her, but certainly not for reasons relating to X’s best interests.
Underpinning this extreme dichotomy and the views of the parties regarding what has happened following their separation is a significant divergence regarding who provided the bulk of care for X prior to separation.
Both parties were in paid employment during their marriage from time to time. The husband was also very ill in 2007 and 2009. The mother deposes as follows:
“From the time X was born, I was his sole carer. I looked after him with little or no assistance from Mr Alley. Later I worked in the (omitted) industry. Initially I was working 15 hours per week, but that was later increased to 20 to 25 hours per week.”
The father denies this position and asserts he was X’s main carer, other than in periods when he was too ill to care for him. He says he worked at nights to be available to care for X during the day.
Mr Alley has provided medical certificates which indicate his lymphoma is in remission. Due to an injury he suffered at his workplace, he currently receives WorkCover payments. Ms Alley is not currently working.
X is attending kindergarten in (omitted) on Mondays and Tuesdays, between 9 am and 3 pm and for half the day on Friday between 9 am and midday. The mother accepts it is a good kindergarten but is critical that she was not consulted about placing X in it by the father.
The mother also alleges that the father has poor housekeeping skills and is an inept parent domestically. She says that this is self-apparent because Mr Alley concedes he has engaged a nanny or a series of nannies to provide care for X. The mother is apprehensive that the father is not providing the essential emotional nourishment which a child of X’s age requires because of deficits in this regard on Mr Alley’s part.
After separation the mother deposes that she was permitted to have regular daily time with X at the former family home subject to the supervision of the father or his father.
It is her position that in this period the father was desperate to reconcile with her and was using the child as a mechanism to achieve this. Again, this underpins her assertion that the father is emotionally unstable and is seeking to control and coerce her to his will. The father acknowledges that the mother has seen X frequently but for brief periods in the former family home.
It is his position that he was advised by a counsellor at Relationships Australia that this was the appropriate way forward. He also acknowledges that this regime stopped around about the time the mother commenced these proceedings.
However, from his perspective, the rationale for him ceasing the arrangement is because he says the mother’s behaviour was becoming increasingly unstable and violent, which has allegedly upset X.
The mother’s position and why she urges the court to make the orders which she seeks is based on the following assertions:
·She was X’s primary carer.
·The father is controlling X to either punish her or compel her to return to the marriage.
·The father is unable to meet either X’s emotional or physical needs and is reliant on others to parent X.
The father’s position and why he urges the Court to make the orders which he proposes is posited on the following assertions:
·He was X’s primary carer.
·The mother is a manipulative and disingenuous person and effectively, walked out on the child.
·She is mentally unstable and her instability in this regard is growing.
·He is suspicious that the mother’s accommodation and her ongoing situation is uncertain and certainly not suitable for a child of X’s age.
·On the other hand, he says his accommodation is stable and familiar to X as he has lived there all his life.
The matter came into Court on 27 June 2012. With the consent of each of the parties, I made the necessary orders placing X’s name on the Airport Watch List, which prevented him from being taken out of Australia.
In addition, at that stage, in circumstances where the mother had not seen X for a period in excess of a month, I made orders which allowed X to spend daytime periods with his mother, with the child to be exchanged between the parties at a shopping centre close to where each of them lives.
At that stage I did not think it was likely to be in X’s best interest that a regime of supervised time be inaugurated. Such a regime would have been dependent on the parties securing a place at one of the children’s contact centres based in the Adelaide metropolitan area.
It is common ground between the parties and well known to the court that there is currently a significant delay for parents to be accepted into such contact centres. In addition, at best, contact centres are only able to offer parents two hours of supervised time per fortnight.
It was apparent to me on 27 June 2012 that, whatever were the disputes between the parties, clearly X knew both of his parents well. As such, I was concerned that it was not likely to be in his best interests for his relationship with his mother to be truncated in the manner proposed by the father by requiring a process of supervision as the next step.
But at that stage, it was also clear to me that the situation between the parties was a difficult and mistrustful one. In particular, a theme of the father’s case is that the mother has behaved inappropriately towards him after separation and has been abusive towards him and has indeed, on occasions, assaulted him. This was part of his rationale for proposing a contact centre.
Although, at this stage, I am not in a position to ascertain the complete truth or otherwise of those assertions, in the context of the mother’s allegations that the father has been controlling of her interactions with X, a child whom she has deposed she loves, I can understand why she would find what has occurred recently a difficult and perhaps provocative situation.
I accept that the situation, since the parties separated, has been very difficult for them both. Certainly, it would appear to be the mother’s case that, if she has behaved inappropriately, it is as a consequence of the father’s controlling behaviour. But again, as I say, what is the precise truth of that period of time awaits final hearing.

I suspect, with the sage advice of his counsel, Mr Alley perhaps was persuaded to see that it was unlikely that the court would accede to his application for supervised time which, I suspect, had something of the nature of an ambit claim about it.
There was some shifting of ground, on his part, but it remained Mr Alley’s position that he was vehemently opposed to the child spending any overnight periods of time with his mother.
In that context, I thought it might be useful if the parties met with one another and a family consultant to see if they could move further towards a compromise. The parties saw Mr P, a family consultant, on 3 July 2012.
The child dispute conference seems to have been singularly unhelpful and Mr P was not able to provide me with any useful advice as to how the matter could be advanced other than that a family report should be prepared. The matter returned to Court on 4 July 2012, the day after the unhelpful conference.
The mother is a person who is not in a strong financial position. I suspect that the father is also not in a particularly strong financial position but the impression I have, possibly mistaken, is that he does receive some support from his father and other members of his family. Certainly, he is living in his sister’s home and his father has returned from, I think, (omitted) where he normally lives.
Ms Alley is a person from the (omitted). As far as I know, she has no specific work skills. The tone of the father’s case, including affidavits which have been filed by members of his family, is that the mother has, in the past, done whatever she can to live in a first world country, including involving herself in sham marriages. The impression sought to be conveyed being that she is a deceitful and manipulative person.
Whether that is true or not again, I am not in a position to say but it is clear to me that the mother is not in a strong financial position. She has worked part-time in the past, as I understand it. She is not working at present. She is not likely to have any savings or capital resources behind her and I suspect she is likely to be in receipt of the social security payments.
Anyway, following the parties’ separation, when she left the former family home, it is common ground that she took up residence in (omitted) in (omitted) in what has been described as a “rooming house” situation.
The father was critical of that accommodation because the facilities, such as bathroom and kitchen, are shared between the occupants of the dwelling in question and he was also concerned that (omitted) is a busy road and there was insufficient security for X there.
Anyway, the father put those concerns about the mother’s accommodation on affidavit. In response, the mother came to court and, through her counsel, indicated that she had moved to alternative accommodation in (omitted) in (omitted).
She said that she had obtained the accommodation through a (omitted) friend. That the property in question was owned by a gentleman involved in the (omitted) industry who flew in and flew out from Adelaide. That the property itself was a large, comfortable house with a fence, in a quieter road than (omitted) and, from her perspective, it answered most of the criticisms which Mr Alley had raised about her previous accommodation.
After some discussion with the parties’ respective legal advisers, I came to the view that it might be helpful and perhaps lead to some empathy being created between the parties, if Mr Alley had an opportunity to inspect the place. Accordingly arrangements were made for Mr Alley to go and inspect the property at 4 o’clock that day.
I also indicated, somewhat off the cuff, that parties in this day and age could photograph things on their mobile phones. I did not intend this as an invitation for the property to be photographed. Anyway, Mr Alley, as a result of that, has prepared another affidavit, as has Ms Alley.
I have had only a cursory opportunity to read those affidavits. Mr Alley says he drove past the property at 2 o'clock on 4 July. Why he needed to go to the house two hours prior to the time scheduled, I am not particularly sure, other than perhaps he wanted to have a preliminary reconnoitre of the property.
Anyway, there were two cars there. As a result of that Mr Alley went to the (omitted) police station to make inquiries about the cars. He came back to the house with police. Why he felt the need to do that is something that is again unclear to me.
I am concerned, perhaps, that involving the police had the potential to escalate a difficult situation between the parties. Anyway, the police were apparently willing to come to the property. Why they were willing to do so is a mystery to me, but they were. And there was, perhaps, a difficult situation in which Mr Alley said he had been given permission by the court to take photos of the entire house. If he had that impression, I regret it.
Anyway, he has some complaint that there were some Heineken beer bottles in the fridge. I do not consider this significant. There were other complaints. He is concerned that there was no lock on the room in which X was to sleep. Anyway, I have been provided with some photographs that he took.
The house in question seems to be unexceptional. It has a fence. It has a bathroom and toilet. It has a kitchen with a kitchen table in it. And there is a room which seems to have the things that a child would find comforting.
The father says that he was assaulted by the mother at this particular event. Anyway, I am shown a photograph that allegedly has a bruise on it. The provenance of the bruise is unclear to me. But, again, the dynamic of the relationship is that from the mother's point of view the father does something provocative in a stressful situation. She says she reacts or is defending herself in that situation. The father says that it is the mother who is the voluble and unstable one.
Regrettably, what I thought naively could lead to there being some empathy arising between the parties – the father could see where the mother proposed spending time with X and could be reassured by it – has miscarried and there has been more conflict between the parties.

The legal principles applicable

I now come to the legal principles which I must apply in determining this matter. The essential difference between an interim and a final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do.
Accordingly, the outcome of an interim hearing is provisional in nature. However, although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage. In making the interim decision, as at the final stage, the best interests of the child affected by the decision remain the most important consideration.
The matters which the court must take into account in deciding how a child's best interests are to be served is set out in section 60CC of the Family Law Act. What have been called the best interests considerations rest on two main pillars.
The first is the importance to a child of having a meaningful relationship with both of his parents. The second is the need to protect the child from physical or psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children's circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her: section 61DA.
The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents. The presumption does not apply if there are reasonable grounds to believe that a parent is engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied: section 61DA(3). This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider, firstly, whether the child concerned should spend equal periods of time with both his or her parents provided such an outcome is both likely to be in the child's best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for substantial and significant periods of time. Again, this outcome is subject to considerations of the child's best interests and reasonable practicality.
In the case of Goode & Goode[1], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[1] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
As I say, it is interesting to note that Mr Alley proposes, at both the interim and final stage, that the parties should have equal shared parental responsibility for X. But it would appear to be his position that not withstanding the application of the presumption, the court should not consider either equal time or substantial and significant time.
The mother's position is that – although it's not particularly well drafted – the parties should share parental responsibility for X at the final stage. Anyway, as I say, I suspect that neither party have considered with any degree of care what is the applicability of the presumption in section 61DA.

Section 60CC factors

I turn to the section 60CC factors, and, in particular, the primary considerations. The court is directed to consider the benefits which are likely to come to a child of having a meaningful relationship with both of his or her parents.
Although the evidence available to me is provisional and untested, it does seem to me to be likely that X has a significant relationship with both of his parents. Both have been involved in his care prior to separation.
It is, I think, incontrovertible that the mother cared for X when the father was unwell. It is also likely to be the position that when the mother was working, the father was involved in X's care.
In addition, as prior to separation, both parents were sharing the same household with X, and given the circumstances of the parties, it seems likely to me that X knows and loves both his parents well. As such, it seems more likely than not that he derives considerable emotional benefits from interacting with each of his parents.
Indeed, after the parties separated, the father's actions concede that he was of the view that there is a significant relationship between X and his mother. This must follow by reason of his conduct in allowing almost daily contact between X and his mother.
The legislation talks of a meaningful level of relationship. Meaning in parental relationships comes from both the quantity of time and its context. It is, I think, essentially the mother's position that she will not have a meaningful relationship with X and X will, therefore, not benefit if her time with the child is significantly curtailed.
It is also her position that there will be more meaning to her relationship with X, and X's relationship with her, if she is able to engage with him in a variety of contexts, both fun times and more mundane times.
It is in this context that she wants to have the opportunity of spending time with X overnight. It being her case that it will add some depth to the relationship between the two and maintain that depth if she is able to tuck X into bed, read him a story, tend to his needs in the night if there are any such needs and make him breakfast in the morning. In general terms, I agree that context of this type will add meaning to X's relationship with his mother and as such X is likely to benefit.
Both parties place significant emphasis on the need to protect X from the physical and psychological harm which will come if he is exposed to abuse, neglect or family violence. Essentially each party asserts that the other has behaved in a coercive or violent way and this type of behaviour is likely to be detrimental to X in both the short and longer term.
At the interim stage, allegations of family violence pose a significant difficulty for the court. Such allegations are often difficult to corroborate or establish definitively.
However, all allegations of family violence must be closely examined by the court, given the serious consequences exposure to family violence may have for any child concerned. These consequences are that a child will become frightened if he sees a parent being assaulted or threatened. In extreme circumstances, a child may become physically involved in an altercation between parents and so injured.
More subtlety and over the longer term, a violent parent represents an inappropriate role model for a child. Children learn how to behave from how their parents behave. This is true of even very young children.
Allegations of family violence are easy to make but difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and, indeed, fear which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised both by the court and the community generally that family violence is prevalent in all social settings.
However, family violence is not of itself a homogenous concept. It can range in character from impulsive behaviour that arises as a result of a stressful situation such as a relationship breakdown and is instantly regretted or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned.
Obviously the latter behaviour is the more damaging so far as children are concerned. Not all incidents of family violence will be necessarily damaging for a child.
It is impossible for me to categorise the more serious incidents of family violence which involve the knife which the father alleges. In any event this matter happened some time ago. It is, as I understand it, the mother's position that she was defending herself. Again, whether this is so or not, I am not in a position to say.
It is also, I think, the mother's position that she has been provoked and has defended herself and has reacted to stressful situations. Again, what are the implications of the various allegations that the parties have made against one another for X's wellbeing is unclear to me.
The import of the mother's position is that there has been a power imbalance between the parties and it is the father who attempts to control and coerce her. She, I think, would assert that the father's behaviour is potentially damaging to X.
I must make some sort of assessment of risk which the parties' allegations of poor behaviour represent for X. Risk cuts both ways. There is a risk of X being exposed to a violent and inappropriate parent but there is also a risk of artificially constraining a relationship which is otherwise worthwhile and which is likely to benefit X.
At this stage both parties make allegations of improper behaviour against the other. Their allegations are primarily directed at the other. Importantly, it is not said, I think, that either of them would willingly neglect or abuse X although it is a theme of the father's case, I think, that the mother is a selfish and self-absorbed person who will not provide proper care for X.
In this case I have come to the view that issues to do with the benefit X is likely to have from having a more meaningful level of relationship with each of his parents must be given some pre-eminence. That is not to underestimate the family violence issues which arise in this case.
However, it seems to me that if the parties do not come into contact directly with one another or their interactions with one another are minimised this is the course which will best protect X from the physical or psychological consequence of being abused to his parents' volatile relationship with one another.
In terms of the additional considerations, as I say, I am satisfied that X has a secure and established relationship with each of his parents and is also likely to have a close relationship with his paternal grandfather. In this regard it is interesting to note that Ms Alley speaks very highly of Mr Alley Senior and regards him as a good person.
I have to consider the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent concerned. In this context I also have to consider the attitude of each of the parties to the responsibilities of being a parent. In this regard it seems to me that Mr Alley has not been particularly facilitative of X maintaining his relationship with his mother.
It is of note, I think, that the decision to enrol him at (omitted) Kindergarten was a decision made by Mr Alley alone. It is a significant element of Mr Alley's case that X is well settled in the Property F property. However, it does seem to me to smack of high-handedness that Ms Alley played no part in the kindergarten decision.

In this context I have to consider the likely effect of any changes in the child's circumstances including the likely effect on being separated from one or other of his parents or any other person including a grandparent with whom the child has been living or spending time with up until this stage.
I think there is much to be said – given the obviously very difficult circumstances between X's parents – of minimising the effect on him of any changes in his care. The mother has moved since the parties separated. X does not know where the mother is currently living at all and on any view what has been a traumatic period of time for X's parents is also likely to be somewhat traumatic for X himself, I would think.
That, I think, is a factor that militates against any significant change in his care at this stage. X is going to be five years of age in a few weeks time. Ordinarily he is of an age when he should be able to tolerate an overnight sleep away from where he habitually lives provided he has the care and support of a trusted adult or parent.
In terms of the practicality and logistical issues which arise in this case regarding X spending time with both his parents, I note that the parties live in adjoining suburbs. The mother does not drive in Australia. As such, she is likely to have to take public transport or engage a taxi to go to (omitted).
But although she is not a person of great means it would seem to me that the logistical issues in this matter are not extreme. I have to make some assessment of the capacity of each of the parties to provide for X's emotional and intellectual needs.
At this stage, given his age, his intellectual needs are likely to be met by him attending a good kindergarten and in turn in time going on to primary school. What is likely to be more important, at this stage, is X’s emotional needs.
In this regard, it is the case that each party essentially asserts that the other is putting his or her emotional needs before X's needs. Clearly, given the degree of conflict and competition between the parties, which I have tried to outline in these reasons for judgement, indicates that there are significant perils at the moment for X in this difficult and mistrustful family situation.
On the one hand, the father asserts that the mother essentially abandoned X at separation. On the other hand, the mother says the father is controlling her every engagement with X to satisfy his own emotional needs to be in command of her.
However, the mother brought these proceedings because she wanted to spend more time with X. She saw the child regularly after the parties separated. These are not the actions of a person who has essentially abandoned a child.
Although the father has his suspicions about how the mother came to find the (omitted) property and what are her relations with the other people who live in the property and how she is supporting herself, I have not come to the view that that property of itself is unsuitable for a child of X's age.
It is, I suppose, all very well for Mr Alley to criticise the mother's situation but the fact remains that the mother is likely to find it difficult to find accommodation for herself close to where Mr Alley lives and to a certain extent the mother must take what is available to her. It is not of itself a crime not to be in a strong financial position.
Although Mr Alley advocates the application of the presumption, in my view, given the criticisms each of the parties have made of the other in terms of violent behaviour and, in addition, given what is obviously a poor and mistrustful relationship, in my view, it would neither be in X's best interests nor reasonably practicable for the presumption of equal shared parental responsibility to be applied.
Balancing all the various section 60C factors, I have come to the view that it would not be in X's best interests for him immediately to come into the predominant care of his mother. I do not think that such an arrangement would work or would not be in X's best interests, given the parental dynamic between the parties as this stage.
However X will benefit from having a meaningful and supported relationship with his mother, a person who has been a consistent feature of his life up until this stage. In order to facilitate the meaning in this parent/child relationship between X and his mother, I have come to the view that there should be some overnight time and that should happen on a weekly basis.
At one stage it was proposed, I think, that orders should be put in place that would, to use the jargon, share the risk. I think the great risks for X at the moment are the parties' competitive and mistrustful relationship and what may eventuate between them whilst they compete for control of X. The best solution to that issue is to have a clear plan or set of orders to regulate X's care.
However, I don't think it would be in X's best interests for him in effect to be shared between each of his parents on either an equal basis for a substantial and significant time basis. That might be perceived as being fair to the parents but I do not necessarily think that it would be fair to X.
In these circumstances what I propose is that X will continue to live predominantly with his father but will also regularly be in residence at his mother’s home in nearby (omitted) during each week. The most natural place for the child to be exchanged between his parents is at his kindergarten. Given X’s age, it seems to me to be appropriate that there be one period of overnight time each week and two other shorter sessions.
The intention of the arrangement being to ensure that X sees his mother regularly, every few days or so, in a variety of settings, including one overnight setting and one longer day period, as well as being able to touch base with him following kindy on one day. This appears to me to be developmentally appropriate for him and will ensure that he benefits from having a meaningful level of relationship with his mother. It also seems to be an appropriate response to the high level of mistrust in the parties’ parenting relationship.
Specifically, I propose that X should live with his mother from after kindergarten (or 12:00pm in the event that kindergarten is not in session) on each Friday until 2:00pm the following Saturday commencing on 13 July 2012; on each Monday from after kindergarten or (3:00pm in the event that kindergarten is not in session) until 6:00pm; and each Wednesday from 9:00am until 4:30pm.
I will also fix a date for final hearing and order that a family report be prepared. The final hearing will be on 4 and 5 December 2012. In conjunction with this hearing I will order that a family report be prepared pursuant to section 62G of the Family Law Act. That report will be released to the parties on or before 5 October 2012.
I will direct that each party file and serve their affidavit material for the trial in the case of the applicant on or before 6 November 2012 and in the case of the respondent on or before 20 November 2012. I will also direct that the applicant pay the hearing fee or obtain a remission of the hearing fee on or before 20 November 2012.
Accordingly the arrangement which I propose will be in place for the next five months or so pending a more thorough investigation of the matter, which will include the preparation of an independent assessment of X and his relationship with each of his parents.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 6 July 2012