ALTHORPE & ALTHORPE

[2021] FCCA 1389

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALTHORPE & ALTHORPE [2021] FCCA 1389

Catchwords:
FAMILY LAW – Parenting – dispute about which parent a child aged 4 should primarily live with – no risk of harm issues – power struggle matter – where the mother’s fall-back position was equal time but where equal time is contraindicated – child to live his father as has been the case since separation three years ago and spend 4 nights per fortnight and half of the school holidays with the mother.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

Cases cited:

MRR v GR (2010) 42 FamLR 531

Applicant: MS ALTHORPE

Respondent: MR ALTHORPE

File Number: NCC 1724 of 2018

Judgment of: Judge Terry

Hearing dates: 21 & 22 April 2021

Date of Last Submission: 22 April 2021

Delivered at: Newcastle

Delivered on: 31 May 2021

REPRESENTATION

Counsel for the Applicant: Mr Tregilgas

Solicitors for the Applicant: Rostron Carlyle Rojas Lawyers

Counsel for the Respondent: Mr Mooney

Solicitors for the Respondent: Worland Family Lawyers

ORDERS

1. The parents shall have equal shared parental responsibility for the child X born in 2016 (“the child”).

2. The child shall live with the father.

3. Unless otherwise agreed between the parties in writing the child shall attend B School.

4. The child shall spend time with the mother during school terms at all such times as agreed between the parties and failing agreement, each fortnight as follows:

   (a)In week 1 from the conclusion of preschool or school on Friday until 9.00am or the commencement of preschool or school on Monday.

   (b)In week 2 from 9.30am on Thursday until 9.00am or the commencement of school or preschool on Friday.

5. Unless otherwise agreed between the parents the child shall communicate with the parent with whom he is not spending time pursuant to these orders by telephone or videocall on Sunday morning at 9.00am.

6. The child shall spend the following holiday periods in 2021 with each of the parents:

   (a)With the mother for no more than 2 blocks of 5 consecutive nights.

   (b)With the father for no more than 2 blocks of 5 consecutive nights.

   (c)The parent who wishes to exercise holiday time in 2021 shall provide the other parent with at least 28 days written notice of the dates of the holiday time.

7. The intended holiday dates will not include any of the following dates:

   (a)Mother’s Day or Father’s Day.

   (b)The child’s birthday.

   (c)The other parents’ birthday.

   (d)The birthday of the paternal sister, C.

   (e)The allocated school holiday time for C to spend with the father.

   (f)Christmas Eve, Christmas Day or Boxing Day.

   (g)Any other date on which the other parent has already provided written notice of their intention to spend holiday time with the child in accordance with this Order.

8. From the child commencing Kindergarten in 2022 the child shall spend the following holiday periods with each parent:

   (a)For the first half of the New South Wales Term 1, 2 and 3 school holidays:

   (i)In EVEN numbered years with the mother from 9.00am on the day after school breaks up until 4.00pm on the day which is the midpoint of the holidays and with the father from 9.00am on the day which is the midpoint of the holidays until the conclusion of the holiday period.

   (ii)In ODD numbered years with the father from 9.00am on the day after school breaks up until 4.00pm on the day which is the midpoint of the holidays and with the mother from 9.00am on the day which is the midpoint of the holidays until 9.00am on the last Sunday of the holiday period.

   (b)During the Term 4 school holidays:

   (i)Until the child turns 7 in 2023, unless otherwise agreed in writing, in a week about arrangement from 9.00am on the first Saturday to 9.00am on the next Saturday and each alternate week thereafter provided that they are returned to the father by 9.00am on the third day before the commencement of Term 1.

   (ii)From the Term 4 school holiday period commencing in 2023, unless otherwise agreed in writing, for a 14 day period from 9.00am on the first Saturday of the holiday period until 9.00am on the Saturday 14 days later and for a further 7 day period commencing at 9.00am on the fifth Saturday of the holiday period and concluding at 9.00am on the following Saturday.

   (iii)From the Term 4 school holiday period commencing in 2026 and each year thereafter, unless otherwise agreed in writing:

   A.    In EVEN numbered years with the mother from 9.00am on the day after school breaks up until 4.00pm on the day which is the midpoint of the holidays and with the father from 9.00am on the day which is the midpoint of the holidays until the conclusion of the holiday period.

   B.    In ODD numbered years with the father from 9.00am on the day after school breaks up until 4.00pm on the day which is the midpoint of the holidays and with the mother from 9.00am on the day which is the midpoint of the holidays until 9.00am on the last Sunday of the holiday period.

9. If Mother’s Day falls on a weekend when the child would otherwise be with the father, the child shall be delivered to the mother at 4.30pm on Saturday and returned to the father at 9.00am or the commencement of preschool or school on Monday.

10. If Father’s Day falls on a weekend when the child would otherwise be with the mother, the child shall delivered to the father at 4.30pm on Saturday and remain with the father until 9.00am or the commencement of preschool or school on Monday.

11. For the child’s birthday in 2021 the child will spend time with the parent with whom he is not currently living with pursuant to these Orders from 11.00am to 4.00pm if it is not a preschool day.

12. For the child’s birthday in 2022 and each year thereafter if the child’s birthday falls on a school day the child will spend time with the parent with whom he is not currently living pursuant to these Orders from the conclusion of school until 7.00pm.

13. The child shall spend time with each parent on his or her birthday and with the father on the child C’s birthday at times as agreed between the parties.

14. Notwithstanding any other order the child shall spend time with each of the parents as follows:

    (a)In odd numbered years, with the mother from 3:30pm on Christmas Eve until 3:30pm on Christmas Day and with the father from 3:30pm on Christmas Day until 3:30pm on Boxing Day.

    (b)In even numbered years, with the father from 3:30pm on Christmas Eve until 3:30pm on Christmas Day and with the mother from 3:30pm on Christmas Day until 3:30pm on Boxing Day. 

15. The father or his agent shall collect the child from the child’s preschool/school at the commencement of any period where the child is to live or spend time with the father.

16. The mother or her agent shall collect the child from the child’s preschool/school at the commencement of any period where the child is to live with or spend time with the mother.

17. All changeovers which do not take place at school or pre-school shall take place at the D Service Station, E Street, Suburb F.

18. Each party shall keep the other party informed of their respective addresses, email addresses, mobile telephone numbers and advise the other within 48 hours of any change of the same.

19. Unless otherwise agreed between the parties in writing the child shall attend the G Medical Centre.

20. Each parent shall keep the other party informed of the names and addresses of all medical and allied health practitioners who are involved in treating and caring for the child.

21. Each parent shall advise one another of any medical, dental, optical or allied health appointments made for the child and each parent be at liberty to attend any of these appointments.

22. Each parent shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or are diagnosed as suffering from a serious illness.

23. Each parent may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and other information normally provided to parents and each parent may attend events at the child’s school normally attended by parents.

24. If either parent takes the child to a medical or allied practitioner (whether as a result of an appointment booked for the child or if the child is consulted during a parent’s appointment) and the other parent has not also attended that appointment, then the parent who took the child to the appointment shall advise the other parent of the outcome of the medical or allied health appointment.

25. Each of the parents shall promptly notify the other if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.

26. Each parent is restrained and an injunction is granted restraining them from:

    (a)making any video recording of changeovers of the child between them pursuant to these Orders.

    (b)denigrating the other parent or any member of that parents’ family to or in the presence or hearing of the child or permitting the child to remain in the presence or hearing of any other person doing so.

27. Within fourteen (14) days of a written request from the other party, each party shall do all such acts and sign all such documents as may be required to renew a passport (or Australian travel document) for the child or any other document deemed necessary for the purpose of overseas travel.

28. In the event either parent refuses or fails to sign the application for the child’s passport (or Australian travel document) within fourteen (14) days of the written request in accordance with the preceding paragraph the parent who has signed the application (the consenting parent) shall be entitled to seek the passport (or Australian travel document) to issue without the written consent of the other parent (the non-consenting parent) and it is requested that an Australian travel document issue for the child notwithstanding the non-consenting parent’s refusal or failure to provide their written consent.

29. The cost of the child’s passport application or renewal shall be paid equally between the parents.

30. The child’s passport shall be retained by the father who will provide the child’s passport to the mother.

    (a)Within 14 days of a written request by the mother for the purpose of obtaining any necessary travel visa or authorisations or booking any overseas travel for the child.

    (b)At least 14 days prior to the intended departure date of the child’s overseas travel.

31. The mother shall return the child’s passport to the father within 14 days of the child’s return to Australia.

32. Either parent may take the child on an overseas holiday during their respective holiday period provided that:

    (a)The travel is not to any overseas destination subject to the Australian Department of Foreign Affairs and Trade travel advice ‘do not to travel’ or ‘reconsider your need to travel’, unless the other parent consents in writing.

    (b)The parent intending to travel overseas with the child provides the other parent with thirty (30) days’ written notice of the intention to travel overseas with the child.

    (c)No less than fourteen (14) days prior to the departure date the parent taking the child overseas provides to the other parent:

    (i)Copies of prepaid return tickets for the child;

    (ii)A general itinerary of the proposed journey including the date time and place of the child’s departure from Australia and arrival in the nominated country/countries and the date time and place of the child’s anticipated return to Australia; and

    (iii)Telephone contact details and address details for the accommodation.

33. In the event that there is a material change in that itinerary or telephone number, the travelling party shall forthwith notify the party that remains in Australia of such change.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1724 of 2018

MS ALTHORPE

Applicant

And

MR ALTHORPE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves a dispute about parenting arrangements for X, who is four and a half. 

3. The parents are both good parents and the case is refreshingly free of the risk of harm issues which I so often have to grapple with.

4. The parents agree that they should have equal shared parental responsibility and that they should each be an important part of X’s life in the future.  The dispute I have to determine is whether X should live with the father and spend four nights per fortnight with the mother, live with the mother and spend five and later six nights per fortnight with the father, or on the mother’s fall-back case, live in a week about equal time arrangement.

5. The fact that the matter is free of risk of harm issues is a positive, but the fact that the parties have been in dispute about parenting arrangements for X since they separated three and a half years ago and have been in the court system for nearly three years and that notwithstanding the absence of risk of harm issues they have been unable to settle the matter causes me grave disquiet. 

6. Matters where the underlying issue is a power struggle, and this matter has all the hallmarks of that, have an unfortunate history of coming back repeatedly to court, to the ultimate destruction of the child or children involved.

7. Currently X lives with his father and spends time with his mother from 9.00 am on Sunday until 9.00 am on Tuesday and from 9.30 am until 4.00 pm on Thursday each week.  This arrangement has been in place since he was two. It needs to change, if for no other reason than that he is due to commence school next year. 

8. The mother has never been happy about X spending more time with the father than with her.  She proposes that the new regime be that X lives with her and spends time with the father from Friday to Monday in week 1 and Wednesday to Friday in week 2, which is five nights a fortnight, until Term 2, 2022, and then from Thursday to Monday in week 1 and Wednesday to Friday in week 2, which is six nights a fortnight. She proposes that the school holidays be shared equally.

9. In the alternative, she proposes that the child live in a week about equal time arrangement, again with the school holidays being shared equally. 

10. The proposed orders in the mother’s further amended application are extraordinarily lengthy, comprising some 11 pages. She also sought orders about special days, the choice of preschool and school, communication, choice of medical practice, access to medical and school information and overseas travel and a restraint on relocation among other things. 

11. The father proposes that the child live with him and spend time with the mother from Friday to Monday in week 1 and Thursday overnight to Friday in week 2.  He proposes that the child spend two five-night blocks with the mother during the school holidays in 2021 and for half the school holidays once he commences school in 2022. 

12. The father also seeks orders about special days, communication, access to medical and school information and overseas travel and a restraint on relocation but he was able to contain his orders within five pages.

The evidence

1. The mother relied on her further amended initiating application and affidavit filed on 9 April 2021 and the affidavits of her partner Mr H and her mother Ms J filed on 9 April 2021. 

2. The father relied on his amended response and affidavit filed on 9 April 2021 and the affidavit of his mother Ms K, also filed on that day. 

3. The mother, father and Ms K were cross-examined. Ms J and Mr H were not required. 

4. Two family reports were prepared in the matter by Dr L, a family consultant employed by the court. One is dated 13 November 2018 and one is dated 16 January 2020.  Dr L also prepared a duty day CDC on 6 August 2018 and suggested that this be read in conjunction with her first report. 

5. The first report was a limited issues family report. X had turned two a few weeks before the interviews for that report and the family consultant was asked to consider how and when his time with his mother should increase based on his developmental needs. The second report was a full family report. 

6. No tender bundle was prepared and there were only a couple of tenders in addition to the case outlines, which was befitting in a matter with no risk of harm issues.

7. In his case outline document and at the beginning of the hearing, the father’s counsel expressed concern about the mother’s trial affidavit.  He suggested that he may not be in a position to start the trial, and it is a daunting document.  The body of the affidavit contains 275 paragraphs and is 91 pages in length, and attached to it are 95 pages of annexures.  In the body of the affidavit there is page after page after page of lengthy descriptions of incidents which allegedly occurred on specific days over a period of three years.

8. The affidavit also contains a large amount of material which is in the nature of submissions and is not evidence.

9. As I noted earlier, the orders the mother sought in her further amended initiating application were also of unusual length, which suggests that either the mother or her solicitor has difficulty expressing themselves succinctly. 

10. It would behove the mother’s solicitor, for the sake of future matters she is involved in, to reflect on the fact that if the court is swamped with an avalanche of material, there is a risk of important points in a party’s case being overlooked as the court struggles to digest a massive amount of material which is not so important. Clients can be usefully advised of this issue. 

11. Drafting extremely lengthy orders and using hundreds of words when 10 or 20 would do can sometimes mean that there is a greater, rather than a lesser, risk of orders being misunderstood and contravention applications being brought or threatened.

12. However notwithstanding the fact that the father’s counsel grumbled about the mother’s affidavit, the trial did commence and the father was able to make clear his extensive disagreement with the allegations in it without the necessity for each and every one of them being specifically cross-examined upon. 

13. There are many puzzling contradictions in the mother’s case.  Notwithstanding that she was proposing that the parties have equal shared parental responsibility and that the father spend either five or six nights a fortnight with the child or alternatively that there be equal time, she went to quite extreme lengths in her affidavit to blacken the father’s character and demonstrate that he was an unfit parent. 

14. She included a three-and-a-quarter-page summary of derogatory comments he made about her after separation, which she obtained by unlawfully accessing his Facebook Messenger account, and a vast number of pages of her affidavit were devoted to setting out in detail occasions between 2018 and March 2021 when she alleged the father had been abusive, threatening and intimidating to her at changeovers, had encouraged X to disrespect or disobey her or had discussed court proceedings with the child, all things strongly contraindicative of an equal time arrangement or even a substantial and significant time arrangement.

15. Another puzzling aspect of the case, which is partly tied in with the above, was that some of the propositions in the case outline document prepared by the mother’s counsel were contradicted by the mother during cross-examination and I refer to the following paragraphs:

    X has a close and loving relationship with his mother. This relationship may be adversely impacted by the current time that X spends with his mother.[1]

    It will be the mother’s case at trial that the father lacks the capacity to provide for the needs of X including X’s emotional and intellectual needs as including;

    (i)Post separation, the father is unnecessarily controlling of time between X and his mother.

    (ii)Post separation the father allows his personal issues as to the mother and her lifestyle and the mother’s partner Mr H to supplant objectively the necessary relationship between X and his mother.

    (iii)Such indicia, post this trial, do not augur well for the future and continuing relationship between X and his mother.[2]

    [1] Mother’s case outline document paragraph 8

    [2] Mother’s case outline document paragraph 9

1. The mother was not always a reliable witness. She was asked in cross-examination if X had a good relationship with the father’s family and she said she could not comment. However in her affidavit she said as follows:

   Mr Althorpe has a large family who all live close by. X has a close and loving relationship with his paternal grandparents, particularly Mr Althorpe’s mother who is a very caring and nurturing lady. It is important for X to also be able to maintain and develop his relationship with members of Mr Althorpe’s family.[3]

   [3] Mother’s affidavit paragraph 98

2. The same thing happened when she was asked about the child’s relationship with his sister C.  She said she could not comment, but in her affidavit she said as follows:

   During our relationship I observed X and C to have a close and loving relationship. C was a very nurturing and caring young girl who doted on X. When X was a baby, C would often ask to help me with X, be it bathing or wanting to feed him a bottle. C and X played well together and I could see X loved having her around. I do not know what their relationship is like currently.[4]

   [4] Mother’s affidavit paragraph 94

3. When it was put to her that nothing much had changed in terms of X’s relationship with his sister, she agreed that was the case.

4. There was some very irresponsible drafting in the affidavit signed by the mother’s partner Mr H.  At paragraph 34 of his affidavit he said that he had seen communications between the father and the mother from several months after separation, which the mother had shown him, where he was called a “cunt” and where he and the mother were threatened with harm. 

5. He did not specify in his affidavit exactly when those things were said but it is clear from the content of that paragraph that somebody, either Mr H or somebody else, had cherry-picked a few comments from the unlawfully accessed Facebook Messenger pages from June and July 2018 and it is very clear, when you consider that, that the implication in his affidavit that those things were a direct threat to him and the mother is simply not correct.

6. The father’s affidavit was much briefer and I had fewer concerns about his credit. The answers he gave when he was asked about an incident at Town M Hospital when he had X in his arms were very convincing. However this is not a case which turns greatly on the credit of the parties.  My concern about the nature of the mother’s material is more my ongoing puzzlement about how it fits with the outcome the mother sought to achieve.

Background

1. The mother and the father lived together from 2013 to 19 January 2018 and they have one child, X, who was born in 2016. 

2. X is the mother’s only child.  The father has a daughter C, who was born in 2010 and who is 11. There are orders in place between the father and C’s mother and C has lived with her mother and spent five nights a fortnight with her father since she was three years old. 

3. Between X’s birth in 2016 and late July 2017 both parties were at home with him full time.  In the case of the mother that was because she had taken a variety of leave from her employment.  In the case of the father it was because he had not worked in paid employment since late 2012 when he was injured in a motor vehicle accident.

4. The mother claimed that she was X’s primary carer during that period. She said in her affidavit that the father was often called away to other commitments, and she went into considerable detail about that.  I consider it likely however that there is an element of reconstruction in this and I am satisfied on the balance of probabilities that the parties shared the day-to-day care of X during this period. 

5. In late July 2017 the mother returned to work part time. The father cared for X when the mother was at work from Wednesday to Saturday each week, save that he spent about six hours on the Thursday in the care of the maternal grandmother.  The paternal grandmother provided some care if the mother was required to work on Tuesday. 

6. The mother said she had to return to work for financial reasons and it was not her preference. The father disputed this and said the mother was career focused and keen to return to work.

7. The family report writer said that both paternal grandparents were of the view that while the parents were together there was an agreement that the father would stay home and care for the child whilst the mother worked full time but wherever the truth lies about why it was that the mother went back to work, whether because she liked to work or because she felt she had to work, is not material at this stage.

8. To the father’s credit he said that he knew that the mother sometimes got upset about missing out on time with X and he said that he sometimes sent her pictures of what he and X were doing during the day when she was at work. 

9. I do not accept that the mother willingly abandoned X. Whatever the reason behind it however that was the arrangement that the parties put into place.

10. The parties did not provide any information in their affidavits about what was behind the separation, although there was a flavour in all of the evidence of it coming about because the mother had an affair.  The extent to which that is a perception by the father or true I cannot find because there was no specific evidence given about it.  However the father said, and it did not seem to be in dispute, that before going to work on 19 January 2018 the mother told him that she wished to end the relationship.    

11. The father left the home with X and commenced living with his parents about five kilometres away.

12. Regardless of the reason why the mother went back to work, the reality is that the father had been the child’s primary carer for six months prior to that.  He was caring for the child most of the time when the mother was at work. It was perfectly natural for him to take X with him when he left the home and he cannot be criticised for that. 

13. The mother was very keen to spend time with X after separation and the parties reached an agreement for him to spend two overnights per week with her.  The father maintained that this did not work for X.  The mother did not agree. However X was only 15 months old when the parties separated and what the father said could be true, not because there was anything wrong with the mother’s parenting capacity but simply because of the child’s age and the care arrangements that had been in place for him for the previous six months.

14. The father cut the mother’s time back, without her agreement, to one night a week and part of a day on Thursday and as a result on 7 June 2018 the mother filed an application seeking parenting orders. 

15. On 6 August 2018 orders were made which provided for the parents to have equal shared parental responsibility and for X to live with the father and spend time with the mother from 9.00 am on Sunday until 4.00 pm on Monday and from 9.00 until 4.00pm on Thursday each week.  That agreement was to be in place until he turned two, and a limited issues family report was ordered to assist the court to obtain information to make a decision about what should happen after that.

16. In or about late 2018 the father received a workers’ compensation and personal injuries award and he purchased a home in Town B, which is further away than his parent’s home from where the parties had been living but not that much further away. 

17. The parties attended the interviews for the limited issues family report on 13 November 2018 and shortly after this, based on the recommendations in the report, orders were made for X to live with the father and spend time with the mother from Sunday to Tuesday each week and during the day each Thursday. 

18. The orders were made by consent, although the mother said at trial that while she consented she did not consider it in X’s best interests to live with the father and spend limited time with her.

19. The family consultant discussed in her report arrangements which might be suitable for X as he got older, but the parties could not agree on any longer-term arrangements. As a result a full family report was ordered and interviews for that report were conducted on 13 January 2020. 

20. Following the release of that report the parties still could not reach agreement.  At that time they were also in dispute about property matters and both matters were listed for trial, although the property matter settled prior to the trial commencing.

The parties circumstances

1. The mother lives in Town N on the Region O with her partner Mr H.  She said she had been in a relationship with Mr H since around mid-2018 and that he had lived with her since 2020. 

2. The mother is a Manager at the Employer P. She works seven or eight days a fortnight and said that her hours were flexible and that she could do some work from home.

3. Mr H is 35 and he has two children, Q, aged nine, and R, aged four.  They spend alternate weekends and half school holidays with him. 

4. Mr H described his occupation in his affidavit as a tradesman. In the family report he is described as a supervisor at Employer P. 

5. The father lives in Town B.  Prior to his motor vehicle accident he was a heavy vehicle mechanic but he has not worked in paid employment since then and he is presumably living on his workers’ compensation and personal injuries payouts.  I would presume that he would have to live on them until a social security exclusion period ended unless he has enough to live on for a very long time, which he may.  I do not know because I did not hear the property matter.

6. X attends S Day Care in Town B. He is due to start school in 2022 and the father proposes that he attend Town B Public School.  The mother would prefer that he be enrolled at Suburb F Public School and I will refer to that issue again later. 

7. C continues to spend five nights a fortnight with the father. She attends Suburb T Public School and is in year 6 and she will be commencing high school next year. 

X’s best interests

1. Any orders I make about X must be determined by treating his best interests as the paramount consideration and I must have regard to the matters in section 60CC(2) and (3) of the Family Law Act in order to determine his best interests. 

2. As I often do I am going to start with the additional considerations in s. 60 CC (3).

3. The first of those is the views of the child but that does not help me.  X was too young to be interviewed by the family consultant on either occasion and neither parent suggested that he had a view about future parenting arrangements. 

4. I must consider the nature of the child’s relationship with each of his parents and any other relevant person including a grandparent of the child.

5. The evidence of the parties and of the family consultant suggests that X has a close and warm relationship with both of his parents.

6. He was observed to have a good relationship with both of them at the first family report interviews. He transitioned between the parents without protest once the father was directly there to receive him.  At the second family report interviews he was also observed to have a close and warm relationship with both parents. 

7. In both reports the family report writer referred to the father as X’s primary attachment figure.  That is likely to be true because of his history of care. 

8. X is a valued part of an extended family on both sides. He has paternal family when he is with the father and maternal family when he is with the mother, and it appears that he has a good relationship with all of those extended family members. 

9. I will refer later on to some issues the father raised about Mr H, but X was observed to have a satisfactory relationship with him at the family report interviews in January 2020. The mother also said that X had a good relationship with Q and R and apart from some issues which could be the result of play, the father did not raise any concerns about them.

10. The father said that X had a very good relationship with C, who has always been part of his life and who he calls “Sissy”.  The mother also said to that in her affidavit[5] and it is an important relationship for X. 

    [5] Mother’s affidavit paragraph 94

11. In summary X has a good relationship all round with the significant members of his family. 

12. I must have regard to the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child.

13. Both parents have always been keen to do those things, to the extent, unfortunately, that a power struggle appears to have developed between them since separation. 

14. I must have regard to the financial contributions to the care of the child. 

15. The family consultant mentioned that the mother was paying child support to the father but I have no recollection of that issue being touched on during the evidence before me. 

16. I must have regard to the likely effect of any change in the child’s circumstances. 

17. The mother proposed that the child cease living primarily with his father and commence living primarily with her and spending five nights with his father. In about a year that would change to six nights. 

18. That would be a significant change for the child, who has been in the father’s primary care since he was less than two, and it would also impact on the amount of time he could spend with his sister. 

19. He might adapt to that in time. He has a good relationship with his mother.  However the issue that arises is more along the lines of why should I make that change if there is nothing to benefit the child in my doing so, and I will have to consider later on in the reasons whether there is anything to suggest that there would be a benefit to the child in that change being made. 

20. The mother’s fall-back position was equal time. That was not recommended by the family report writer and I will refer to that issue again a bit later on in the judgment.    

21. I must consider the practical difficulty and expense of the child spending time with each of his parents.   

22. That is not an issue in this case. The parents live about 28 kilometres or 25 minutes driving time apart.

23. The mother said that she might consider moving closer to the father after X commenced school. She talked about moving to Suburb F, which she said was 15 or 17 minutes from the father’s home in Town B. However she has not moved and there is no practical difficulty or expense in the child spending regular time with each parent based on their current locations.

24. I must consider the capacity of each parent to provide for the needs of the child including his intellectual and emotional needs.

25. Both parents are good parents. 

26. The mother is able to provide for the child’s needs on a day-to-day basis in terms of feeding and clothing him and ultimately she will be able to ensure that he attends school. 

27. The father raised a concern about the mother’s work hours, about whether she was always available to care for the child and about whether, if the child spent more time with her, he might end up getting sent off to family members to be cared for because the mother wanted to work on the days he was with her. 

28. The mother was adamant that her work hours were flexible and that she did not work on days X was with her. She did not help allay the father’s suspicions about this by initially objecting when he issued a subpoena for her work records, but I cannot find that there is reason to be concerned that the mother is not able to be flexible in her work.

29. Even if the mother is working a little more than she maintains it is not necessarily a concern.   

30. It would have been a concern when X was younger and it might perhaps be a concern for the remainder of the year, because when children are younger, if one parent is working and the other is not, it makes a lot of sense for the child to be in the care of the parent who is not working.

31. However X is getting older. He is due to start school. Even if the mother was working full time it would not mean that he could not successfully live with her or live in an equal time arrangement.  There are willing grandparents, and before and after school hours care is available to assist with the care of the child.   

32. The mother can provide for X’s day-to-day needs but I have a little bit of a concern about her capacity to provide for his emotional needs. I am concerned that she is so heavily invested in achieving either equality or primacy in X’s care that sometimes she loses sight of his needs. 

33. When it was put to her in cross-examination that X was not likely to understand if an order was made for him to live with his mother and spend time with his father, and she was asked what she would tell him if that order was made, her answer was, “I would tell him that he needs to share the time with Mummy and Daddy.”  That suggests a focus on the parents’ needs rather than on the child’s.  However by and large the mother is a good parent and is well able to provide for X’s needs.

34. Exactly the same situation applies to the father. The mother went into some detail in her affidavit about the impact on him of his motor vehicle accident and the diagnosis of PTSD that she alleged he had as a result. However she told the family consultant at both family report interviews that she did not consider there were any risk of harm issues for X in the father’s care and I am satisfied that the father is a capable parent.

35. This is another area where what the mother said in her affidavit caused me a little bit of puzzlement.

36. During both family report interviews she said there were no risk of harm concerns for X in the father’s care, yet she attached to her affidavit a letter she had obtained from C’s mother suggesting that X had had a fall at a sporting event and the father had not sought appropriate attention for him.  She did not raise this with the father at the time, she saved it up to attach to her affidavit, but at the same time she had been telling people like the family consultant that there were no risk of harm issues in the father’s care. 

37. I am a little bit puzzled about her approach, and I do not accept there is reason to be concerned about the father’s parenting capacity. There is foundation for the following opinion by the family consultant:

    Collateral information regarding the father’s parenting behaviour, competence and understanding of X’s needs suggests there are no concerns as to the father’s parenting capacity.

38. The mother alleged that the father’s anger and aggression toward her impacted on his ability to provide for X’s emotional needs and positively promote a relationship between X and her. 

39. She relied on a couple of pieces of evidence in support of that. 

40. She alleged that after separation the father was controlling and was intent on pushing her aside and not allowing her sufficient time with X and she complained about the decision he made in early 2018 to cut back her time with X.  She also gave evidence about an occasion at Town M Hospital in which she alleged that the father clung onto X and would not let her properly comfort the child and hug him. 

41. I do not accept that there is validity in those complaints. As I have already indicated, it would not be at all surprising if X did not cope with the arrangement the parents agreed on immediately after separation given his age, and the evidence the father and the paternal grandmother gave about the incident in Town M Hospital was convincing. I do not accept that on that occasion the father tried to keep X to himself and not allow him to interact properly with the mother.

42. I am satisfied the father is able to provide for X’s emotional needs.

43. I must consider the child’s maturity, sex and background.

44. X was described by the family consultant as an engaging and likeable child who was developmentally within normal parameters. There is no reason to be concerned about X’s development or behaviour. 

45. I must consider any family violence involving the child or a member of the child’s family.

46. Neither party alleged that there had been any family violence during the relationship, and the father did not make any allegations about family violence at all, at least not by naming it as that. 

1. The mother alleged that since separation the father had behaved toward her in ways which were abusive, controlling, bullying, intimidating and harassing, in other words, in ways which come within the definition of family violence in section 4AB of the Family Law Act. 

2. The mother gave copious evidence about things that had occurred, mainly at changeover.  She alleged the father had told her to “fuck off”, called her a “fucking slut and a home wrecker”, taunted her about her decision to have an abortion, encroached on her personal space, pointed his mobile phone at her as if recording her, thrown X’s bag on the ground at her feet, given her the finger, stared at her and yelled aggressively at her and called her a “whore” or a “whore bag”, and she gave two different versions of that in her affidavit.

3. She also alleged he had called her a “mole” and revved his engine and sped past her car when she was leaving. She alleged this behaviour had been ongoing at changeovers between March 2018 and March 2021. The mother also said the father had repeatedly sworn and made derogatory and degrading remarks to her at changeover and that many of these incidents had happened in X’s presence. 

4. The father told a completely different story.  He said that he always tried to make changeovers quick and pleasant for X.  He said that he took a toy or special comforter for him. He said the mother tended to drag things out, causing X to become upset.

5. The father said that the maternal family had filmed him and were openly hostile to him at changeovers and that the mother had told him he was “fucking dead” and sliced her finger across her throat and that she had thrown X’s bag at his feet.

6. The father alleged that at a changeover on 15 July 2019 the mother hit him in the face when he was taking X from her.  The mother did not refer to this changeover in her affidavit.  He alleged that in mid-2020, the mother started recording changeovers again and also started following him after he left the changeovers. 

7. Both sets of grandparents weighed in on the side of their child.  Ms J filed an affidavit making allegations about incidents at changeovers. The paternal grandparents told the family consultant that the mother stuck her finger up at the paternal family when driving past them. 

8. It is very difficult, in fact impossible, for me to make a finding about where the truth lies about all this morass of allegations. 

9. There is no doubt that the father was hurt and angry after the separation, and in the case outline document his counsel prepared he said that the father had behaved badly at changeovers in the past, although I could not see an admission of that in the father’s affidavit.

10. However I have concerns about the validity of many of the mother’s complaints. There was nothing to give them substance in many instances, for example having them backed up by evidence about where the mother was, whether she had a clear view of things and whether she was sitting in her car, and as I noted earlier, the mother was not always a reliable witness. 

11. The father made a complaint to the police on 13 November 2020 about the mother following him which suggests he genuinely believed that there were issues in that regard, but he could be mistaken about that and I cannot make a finding that there was any deliberate following or harassing.

12. I cannot be satisfied on the balance of probabilities that any particular allegations made by either parent should be accepted, and both parents sought an order for equal shared parental responsibility and said that the solution to the problems that had been occurring was for changeovers to occur at school or preschool as often as possible. 

13. There are no family violence orders in this matter, which is the next heading. 

14. I must have regard to the parties’ attitude to the child and the responsibilities of parenthood. 

15. Both parents are very keen for their child to have the best and be the best, and nothing about this heading requires a separate comment. 

16. I must have regard to whether it is preferable to make the order least likely to lead to further proceedings. 

17. The parties have been involved in litigation about parenting and property matters for three years. They resolved the property matter near the end.  They have been unable to resolve the parenting matter. 

18. Pursuant to the orders I make, whatever they are, X will be spending regular time with both his parents and in an ideal world there should not be any further proceedings.  I am very concerned however about the extensive, extremely detailed and wide-ranging complaints the mother made about the father, and about the father’s complaints about the mother which led to him going to the police last year. 

19. I am also concerned about the power struggle element in this matter. Regrettably there is a risk of contravention proceedings being filed after final orders are made. 

20. I hope it does not happen, but there are no orders I can make which are going to prevent it. If it happens, it will be because of the underlying difficulty between the parents.

21. I must have regard to any other relevant matter. 

22. The father said that communication between him and the mother was extremely poor and there is ample recent evidence of that.

23. An example of it was what happened when the father raised with the mother the issue of X complaining about Mr H hitting him. This was a responsible thing for the father to do; it is preferable if parents raise these matters with the other parent when they happen, and Mr H had in fact hit X, although the mother said it was a “tap”, and I am not saying it was not, I am just saying the father had not made that up. When the father raised it, all it did was cause resentment between the parties. They were unable to communicate effectively with each other about it. 

24. The parties have each failed in the past to communicate with the other about various things and I will refer to that shortly in another part of the reasons, but they have exposed X to conflict because of their failure to communicate, which involved things like the mother engaging the child in extracurricular activities without telling the father and the father not telling the mother about taking the child to the doctor.

25. I indicated earlier there is a strong flavour of a power struggle in this matter. I have considerable concern about the parties’ capacity to communicate and what that might mean for the future parenting of their child.     

26. I am now going to return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of his parents.

27. X will benefit from having a meaningful relationship with both of his parents, who, as I think I may have indicated at the end of the trial, are at the top of the tree as far as parents are concerned. 

28. A central plank of the mother’s case was that the father was not willing or able to facilitate a close or meaningful relationship between herself and X, and that if X continued to live primarily with the father his relationship with her would be undermined.  She submitted that as a result the court should make the orders she proposed, so that X either spend more time with her than with the father or at the very least, spent equal time with her. 

29. In support of that the mother alleged that there was evidence that since separation the father’s attitude to her had been negative and hostile. She referred to the fact that he had vented about her on Facebook Messenger in the most awful terms in the immediate aftermath of separation. She also relied on the observation by the family consultant in the first family report.   

30. The family consultant said that the father was polite and courteous but she said that he was also defensive and that he made a number of negative comments about the mother during the interview and found it difficult to articulate her strengths as a parent.  The family consultant said that he appeared to be focused on the past and made a number of references to the mother’s affair, which he said prompted separation. She also referred to a number of instances in which he had not properly informed the mother about medication for X and about doctors’ visits.

31. The family consultant was sufficiently concerned about those aspects of the father’s attitude and presentation to say this:

    The father needs to be aware that, while he appears to be the primary attachment figure for the subject child at present, he is required to support and promote a relationship with the mother in order to meet the child’s ongoing emotional needs.  If the court forms the view that the father is not capable of promoting a relationship between the child and the mother, consideration of a change of residence may need to occur.[6]

    [6] Limited Issues Family Report paragraph

32. To the father’s credit there was evidence that he had taken that on board. The same family consultant saw him for the second family report and she noticed a considerable change in him. 

33. She reported that he was more willing to say positive things about the mother, less focused on past issues and rarely mentioned his other child during the interviews, which was another issue she had raised in the first report. She said as follows:

    The father appeared to have taken on board the recommendations by the family consultant and appeared open and willing to accept further advice and suggestions. [7]

    [7] Family Report paragraph 90

34. During the interviews for the second report the mother said that the parties had been able to attend medical appointments together and were sharing medical information, prescriptions and medication. She also said that the father had informed her promptly when X had gone to Town M Hospital after an accidental injury and that she had been able to attend and see X.  She made a complaint about not being able to hug and kiss him goodbye but leaving that aside she recognised that the father had promptly informed her about that.

35. The family consultant also said this in the second family report:

    The father acknowledged that the mother loves X and the mother loves spending time with X.[8]

    [8] Family Report paragraph

36. The father was able to say positive things about the mother the second time around and the family consultant said this:

    The strengths of the father are identified as that he has been proactively providing the mother with information regarding X, the father supports a significant and substantial relationship with the mother and there are no identified risk issues for X in the care of the father.[9]

    [9] Paragraph 71 of the family report

37. She also said as follows:

    The view of the Family Consultant is that the father is long-term primary carer of the subject child and at times in the past, the father has been resistant and controlling of the mother’s time with the subject child. The father’s presentation was different from the previous CDS assessment, with the father presenting as more positive about the mother, focused less on the past and the father did not focus on the subject child’s relationship with C to the exclusion of the mother. Apart from information reported by the mother, there does not seem to be any objective evidence supporting the father does not support or promote the relationship between the mother and the subject child. If the Court were to find that the father does not support the relationship between the mother and the subject child, this could lend support to the time reflecting a shared care arrangement. However, the father’s proposal appears to contraindicate this.[10]

    [10] Paragraph 115 of the family report

38. The opinion in the above paragraph has a sound underpinning in the evidence and I accept it. 

39. I do not accept that the father has been doing anything to undermine the child’s relationship with the mother. During cross-examine the following exchange occurred between the father’s counsel and the mother:

    As X’s mother do you think X is a happy boy? Yes

    Healthy? Yes.

    Does he have a good relationship with you? Yes.

    Does he have a good relationship with your mum and dad? Yes.

    Does he have a good relationship with his father? Yes.

    Does he have a good relationship with the father’s family? I can’t comment.

    Is he doing well at preschool? Yes.

    Meeting all his milestones? Yes.

    Since separation X has been living in the main with his father. Does the father deserve credit for raising a healthy happy little boy who is a credit to his parents? I can’t comment.

40. I do not accept that the mother’s relationship with the child is likely to be undermined by the father’s attitudes if he lives primarily with the father.

41. The father raised concerns in turn about things the mother was doing which might have the capacity to undermine the child’s relationship with him.  He alleged that X often said things to him such as that the mother hated him and that he was not allowed to call his sister “Sissy”.

42. I need to consider whether there is any validity in the father’s concern about things the mother might be saying and doing. 

43. The family consultant said that during the interviews for the first family report the mother spoke positively about the father and in the second report she noted that the mother complained about the father not making joint decisions with her but made no other negative comments about him. 

44. That is all very well, but the mother’s trial affidavit was in stark contrast to these observations. It strongly suggests that the mother is overwhelming negative about and hostile to the father, has not been able to let go of the past and has a strong wish to blacken his name.

45. I mentioned earlier that after separation she used his password, which she had no right to do, to access his Facebook Messenger account.  The father’s solicitor raised with the mother in 2018 that this conduct was illegal. The mother nevertheless included in her affidavit a detailed description of the content of those pages.

46. She also attached to her affidavit a letter sent by C’s mother’s solicitor to the father in 2014 complaining about the father’s conduct to C’s mother. 

47. The mother repeatedly referred in her affidavit, in considerable detail, to incidents that had occurred years ago. For example in support of her concern that the father did not properly understand what equal shared parental responsibility meant, she quoted at length from emails he sent her in June and December 2018 and no later emails. 

48. The mother’s recent conduct in not telling the father about engaging the child in swimming lessons and the sports classes suggests a strong desire by her to keep the father at arm’s length. 

49. I cannot place a lot of weight on the child’s comments to the father about the mother hating him.  Whatever the parents might believe, this child is caught in a high-conflict situation, and sometimes children caught in that situation say and do things which are not reliable.  However based on the mother’s affidavit I have considerable concerns about her attitude to the father and this means that I will have to think very carefully about the orders I should make and about any proposal that she have more time with the child.

50. I must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

51. The father raised a concern about Mr H’s behaviour to the child.  Something did happen at the children’s play centre which upset the child, so it was not just a matter of the child coming back and saying something which was entirely without foundation, but there is nothing in the evidence to suggest that Mr H is routinely harsh with the child, and again the difficulty is that the child is caught in a high-conflict situation in which children can often move between homes saying negative things about what has happened in the other person’s home, simply because they form the view that it is the kind of thing the other parent might want to hear. 

52. Also sometimes things children say are simply not reliable. They are overstated or they are taken out of context.  I cannot find that Mr H or either of the parents pose a risk of harm to X. 

53. In her affidavit the mother said that she was concerned for X’s psychological wellbeing as a result of being exposed to family violence perpetrated by the father toward her and his denigration of her, Mr H, Mr H’s children and her extended family, and she backed that up with over six pages of detailed allegations.

54. I do not accept the validity of that complaint. The mother needs to unpack all of that, not pack it into one package.  She needs to consider the reliability of the things the child might be saying when he comes into her home, and as I indicated I cannot make a finding that one parent rather than the other is responsible for what has been happening at changeover. 

55. I do not accept that the child is at risk of psychological harm in the father’s care.

Parental Responsibility

1. Notwithstanding the mother’s case, and she articulated it as such as I have just noted, that the father had perpetrated family violence and that she felt intimidated and harassed by him, and notwithstanding the father’s complaints about the mother’s conduct, which even though he did not name it as such could also be called “family violence”, they both proposed that they have equal shared parental responsibility for the child. 

2. The family report writer supported that outcome and I am going to make that order. 

3. The reality of it is that there will not be too many big decisions which will need to be made about X, which is what an order for parental responsibility requires people to cooperate about. 

4. He is not a child with psychological or behavioural issues, and some of the other things the parties would normally have to discuss will be dealt with by the orders that I am going to make. Both parents sought an order about the school the child should attend and they both sought an order about international travel, so they will not need to discuss and agree about those things in the future. 

5. The parents also both agreed on a restraint about either of them moving away significantly from their current area, which is another thing that can sometimes require people to consult with each other because a major long-term decision is required. 

6. So not too many big issues are going to come up for X; in fact none that I can currently foresee other than those I have just referred to. The parents will both be spending time with him, they will both have knowledge of him and they asked the court to make an order for equal shared parental responsibility and that is the order that I am going to make.

The family reports

1. The family consultant prepared two reports which are internally coherent and contain recommendations which are soundly based on what she observed. 

2. Recommendations in a family report are not binding on me. I have to make my own decision about what to do based on all of the material before me, which includes the family reports but also includes the parties’ evidence, what happened when they were cross-examined and the evidence of the witnesses. 

3. However family report recommendations are important because family report writers do not bring emotion to the matter and they bring skill and experience to the task of making recommendations about what should happen for children. 

4. The family report writer made some recommendations in her limited issues report which the parties ultimately followed, although not terribly happily in the case of the mother, and I do not mean that as a criticism of her. The separation was still fairly new then and I understand she would have been distressed about the fact that the arrangement which worked perfectly well when the parents were together and which meant that she could both work and see her child every day could not continue. 

5. However although the parties reached that agreement they could not agree on anything further, and so a full family report was prepared. 

6. The proposals of the parties which the family consultant was asked to consider during the preparation of the second family report were pretty much the proposals that are before me. 

1. The family consultant did not support a change of primary residence for the child and she made some very strong comments about this matter not being suitable for equal time.  She said as follows:

   These parties have continued in the Court system and appear to involve their solicitors in regular amounts of communication and dispute regarding time proposals for the subject child, including the recent Christmas period. Parents who remain in the Court system and who continue to experience conflict regarding parental decisions and time proposals are not suitable candidates for a shared care arrangement.  The parents could provide information, including letters and communication books which may clarify the nature of the parental communication in this matter.

   Whilst the parental communication is good enough for shared parental responsibility, it is not thought that the current parental communication from both parties is sufficient for a shared care arrangement based upon the above examples. Thus, it is recommended that the parties continue to share parental responsibility and this recommendation is consistent with previous consent orders and the current proposals of both part.

   There is no doubt that it would be best for the subject child to spend significant and substantial time with the mother and the parties concur that this is appropriate. The dispute is over whether this additional time should occur across an alternate weekend or continue to align with the work schedule of the mother. The view of the Family Consultant is that either of these options would be suitable in the short-term but the change to alternate weekend time does need to occur in the next year or so and it is preferred that the majority of changeovers occur at pre-school.

   The view of the Family Consultant is that the subject child does not currently have the capacity to engage in a shared care arrangement and it is important to note that the mother supports this view but asserts he will have the capacity shortly before or shortly after commencement of Kindergarten. It is important to note that it is very difficult to make a prediction as to whether the subject child will have the capacity for shared care in the future, as this prediction is dependent upon specific issues relating to the subject child, the parents, living arrangements and how the parents continue to manage their conflict and their relationship over time. It is important to note that Kindergarten is a very difficult and stressful time for children, and it is not recommended that a shared care arrangement commence in the same year as a child commences school.

   Very few children enjoy a shared care regime and the children that enjoy such a regime are usually older children who have contributed to the parental decision regarding a shared care regime. Many children struggle and suffer due to their parents’ insistence on a shared care regime. It can be very difficult for children to live across two different households, be exposed to different rules in each household, be forced to carry items across both households or have duplicate items across two households. For parents with whom there is conflict, forgetting items or clothes may cause children significant worry or distress. A shared care regime works well when parents are in agreement about the majority of issues, live close to each other and communicate well. It is suggested to the Court that these parents do not have the relationship required to support a child in a shared care regime now. It is unclear if they will have the capacity in the future but if a parent applies to Court in the future regarding a shared care regime, this tends to suggest that the parental communication and conflict remain at a level unsuitable for a shared care approach.[11]

   [11] Family Report paragraph 111, 113 from the word “while” 118, 122 and 123.

2. In the end her recommendations were that the parties share parental responsibility and that the child live with the father and have substantial and significant time with the mother.

3. Earlier in her report she made a comment about what she considered to be the substantial and significant time. She said as follows:

   If it is ordered that the time occur across alternate weekend times, it is suggested that the subject child spend each alternate Friday afternoon to Monday morning in the care of the mother and Thursday day and night in the off week.

Conclusion

1. I am not bound by the recommendations in the family report. I have to make my own decision about what should happen, and of course because I intend to make an order for equal shared parental responsibility I must have regard to section 65DAA of the Family Law Act.

2. That section requires the court, if it has made or intends to make that order, to consider whether equal time, or alternatively substantial and significant time, would in the child’s best interests and reasonably practicable  and if so to consider making an order of that kind. 

3. The mother’s primary proposal was that the child live with her and spend substantial and significant time with the father, and the father’s proposal would also result in the child spending substantial and significant time with each of his parents, so the primary proposals of both parents was that X spend substantial and significant time with each of them and the question then is whether that should take the form of the child living primarily with the mother or primarily with the father. 

4. The parties separated when X was 15 months old. The father was primarily caring for him prior to that and that continued after the parties separated, which was appropriate given his age. 

5. The father has done a good job parenting X. There is nothing which suggests that the arrangements should be changed so that the child lives with the mother and spend five nights a fortnight with the father. 

6. I do not accept that his relationship with the mother is at risk if he continues to spend more time with the father than with her. An additional benefit to the child of living primarily with the father is that he will be able to continue to spend as much time as possible with his sister, who has always been a part of his life, and sibling relationships are very important.

7. So if I have to weigh up those two proposals, the child living with the father and spending substantial and significant time with the mother or living with the mother and spending substantial and significant time with the father, the father’s proposal is to be preferred, because there is simply nothing to suggest that the child would benefit from a change to the situation that has been in place for him since the parties separated.   

8. The mother proposed in the alternative that the parties have equal time, and because of section 65DAA I have to properly consider whether that would be in the child’s best interests and reasonably practicable.

9. In MRR  & GR the High Court said as follows:

   Section 65DAA(1) of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given, under paragraph (c) to the making of an order.[12]

   [12] MRR & GR (2010) 42 Fam LR 531

10. I indicated earlier that it was difficult to see how the child would benefit from a substantial change in his current arrangements, bearing in mind that he is only four years old, he has lived primarily with the father for the majority of his life, the father is doing a good job caring for him, I cannot find that the father is doing anything which is likely to undermine the child’s relationship with the mother and indeed the mother’s own evidence is that it has not been undermined, and that the benefit of the child living primarily with the father is the continuation of his sibling relationship. 

11. I could not be satisfied that it would be in the child’s best interests to order equal time but to cover everything I will consider the matters in section 65DAA(5), which are the matters I have to consider in order to determine whether equal time is reasonably practicable.

12. The first matter in s. 65DAA (5) is how close they live together, and they live close enough together to make equal time practicable.

13. The next thing I have to consider is the parents’ current and future capacity to implement an arrangement of that kind. 

14. I am satisfied they could implement it. They live reasonably close to each other. Even if the child ultimately goes from S Day Care at Town B to Town B Primary and I do not accede to the mother’s request that he be enrolled at Suburb F Primary School, she could still get him back and forth to school. 

15. If the child went to Suburb F the father could do that as well so in practical terms, the parents could implement that arrangement.

16. I must consider though their current and future capacity to communicate with each other and resolve difficulties that might arise in implementing the arrangement, and this is where I have considerable concern. 

17. The parties have a poor relationship. They both made extensive allegations, the mother’s much more extensive than the father’s but he did make allegations, about changeover issues. 

18. They have no track record of being able to discuss issues and resolve them.  For example when the father raised the issue about Mr H and his behaviour to X, there was no immediate resolution of that.  At best the mother suggested that perhaps X should be counselled about telling lies. 

19. The mother did not even raise with the father that it had come to her knowledge that X had a fall at a sporting event.

20. The parents do not have much capacity to discuss issues and resolve disputes.  They both propose that they do not have to see each other at changeovers. 

21. The family consultant expressed concerned in the first report about the use they had both made of the communication book, or should I say the misuse of it.  There are elements of a power struggle in what is happening between them, and there were issues when the mother enrolled the child in swimming and did not want the father to know about it and enrolled him in the sports training and did not want the father to know about it. 

22. They just do not have the capacity to communicate with each other and resolve the little things that might arise in a shared care arrangement; little things like drink bottles or clothing being left behind; making sure that if a note comes home in one party’s week for the child to attend an excursion in the other party’s week, or a mufti day or something, that that information is passed along. 

23. They do not have that kind of relationship and if people do not have that kind of relationship, it can mean that children are exposed to ongoing conflict and difficulty if there is an equal time arrangement.

24. I also have to consider the impact on the child of making an order of that kind.

25. If X lived in a week about arrangement he would not see either of his parents for a whole week. He is only four years old and that would be a really big change for him.  It would be a massive change to what he has been used to all his life and I cannot be satisfied it would be a good arrangement for him at present, nor can I be satisfied that it would necessarily become a good arrangement simply because a year or two passed.

26. It would also mean a separation from his sister in a much more extensive way than is happening at the moment and X would not understand why this had been done. He would need to adjust and I cannot be satisfied that it would be in his best interests or reasonably practicable for the parties to equally share his care.  I concur with the opinion of the family consultant that shared care is strongly contraindicated in this matter.

27. The issue that I then need to return to, though, given that I am satisfied that substantial and significant time is appropriate and that it should take the form of the child living primarily with the father, is the actual form of the order for substantial and significant time. 

28. The father proposed four nights a fortnight with the other parent; the mother, five or six. 

29. I am not bound to do exactly what the father asked me to do, but six is pretty much like equal time and I then have to choose between five and four and at this point I am satisfied that I should place weight on what is in the family report, and the family consultant suggested Friday to Monday and the Thursday overnight to Friday in the off week. 

30. That is the proposal that has been adopted by the father and I am going to make an order for that to occur.

31. I need to deal with a couple of other issues, and one is that the mother sought an order about the school the child attended.  She had a number of proposals but she wanted Suburb F Public School to be the preferred school. I consider it important to resolve this issue for the child’s sake, because he is so close to starting school. 

32. Neither parent is currently living within the feeder zone for Suburb F Public School so they would face a hurdle being able to enrol the child there.  The mother said that if she had a contract to purchase in that area she would be considered to fall in the catchment, but she does not have one at the moment and she also said earlier in her affidavit that she did not intend to move until mid-2022. 

33. The child’s school needs to be organised now and not to be dependent on uncertainties, and the appropriate thing is for me to make an order for one of the mother’s other choices, which is Town B Public School, so that there is no need for the parties to be in dispute about it.

34. Both parents proposed in their orders sought that they have half/half of the Christmas school holidays. I raised a concern about that during the hearing because of the child’s age and the family consultant agreed that that was too long for the child at the moment. I raised the possibility of it being week about until the child was seven, then two/one and then half/half when he was 10, and that is what I am going to order.   

35. The mother proposed an order about that she have first option to care for the child or rather that either party have first option to care for the child if the other party was hospitalised.  There is no evidence that this is likely to happen and the parties do not have a sufficiently good relationship for that to work and I am not going to make that order. If either party needs assistance to care for the child in their time then they have very competent grandparents and other family members to assist them.

36. The mother proposed a year-about holding of the child’s passport.  I cannot see the point of that and I am going to make an order that the father hold the child’s passport. It is a finely balanced issue but one parent needs to hold it, and passports can be an identify document and the child will be living more with the father than the mother in the future. 

37. I realise the mother is going to be very disappointed about this outcome, but I hope that she will focus on the fact that she is an extremely important part of X’s life.  He loves her, and with the orders I have made she can continue to be an important part of his life, as can the father, as long as this battle between the parties ends.

38. I have considerable concern about the future of the matter.  The mother’s affidavit was one long hatchet job on the father and her affidavit and the affidavits of Mr H and Ms J were antithetical to her case that the parties should share parental responsibility and that X should spend either substantial or significant time or equal time with both of them.  The father’s affidavit, although it was briefer, also contained a significant amount of complaint about the mother.  

39. I have concerns about what this might mean for the future.

40. Another thing that concerns me is that it is apparent from the evidence that the mother has a very strong belief that the child should be spending more time with her than he currently is and a strong belief that, at worst, the parties should be sharing his care.  I have a considerable concern that if she does not get exactly what she wants complaints about the father will continue to flow in abundance and the parents will find themselves involved in another round of litigation.

41. I am also concerned, to an extent, that the father could be instrumental in this happening. I am not critical of him for raising with the mother the complaint X made about Mr H. It turned out there was something in that, although nothing damaging or concerning.  However the father needs to think very carefully in the future about whether to let some things go through to the keeper and just not raise them with the mother, and considering the possibility that the child is exaggerating or overstating things or saying things to please, because unless the father does that the parents are going to end up back in court before the ink is dry on these orders. 

42. This case to me, and I have been doing this job for 14 years, has all the feel and flavour of a case which could still be in the court system 10 years from now.

43. I hope I am wrong.  The parents have a choice. They can either let some things go through to the keeper, forgive each other for the past, accept the orders and give X a good life, or they can keep on and on and on chipping away at each other, in which case, as I indicated at the beginning of the judgment, they are going to destroy their child.  They must choose, and I hope they make the right choice.  

44. The mother, during the trial, wanted an order that the child spend alternate Christmases with each parent so that Christmas would not interfere with whatever holiday time she was getting with the child.

45. We had a discussion about that during submissions.  X is only four years old.  I am not going to make that order.  I am going to make the father’s order about sharing of Christmas Day.  When one parent gets the first half of the holidays their time with X their ability to take him away is going to be a little bit impinged on by that, but in the following year they will get the second half, so it will be swings and roundabouts.  

46. I am not going to make orders 34 and 35 about not allowing anyone else to be called “Dad”, “Daddy”, or “Mum”, “Mummy”, or anyone changing the child’s name.  There is no evidence in the case that these are issues that I should be concerned about. 

47. I am going to make an order that the child attend Town B Public School.  I am going to make that because it is logical.  The child will be living primarily with the father.  It was one of the schools on the mother’s list, so she does not have a problem with it as a school, and the issue needs to be decided so there is no conflict and the child can be enrolled there and do orientation days later in the year.

I certify that the preceding two hundred and twenty three (223) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  23 June 2021