B & S

[2004] FMCAfam 61

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & S [2004] FMCAfam 61

FAMILY LAW – Children – residence – young child – significance of prior history of primary care giving by one parent – separation from primary carer likely to be traumatic – shared residence discussed – significant practical difficulties associated with shared residence – staged contact arrangements established consistent with child’s age and stage of development.

Family Law Act 1975

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
M v M (1988) 166 CLR 69
A v A (1998) FLC 92-800

Gordon v. Goertz  [1996] 2 S.C.R. 27

Bennett  (1991) FLC 92-191

Applicant: N B B

Respondent: E J S

File No: PAM 3014 of 2003

Delivered on: 9 February 2004

Delivered at: Parramatta

Hearing date: 4 and 5 February 2004

Judgment of: Ryan FM 

REPRESENTATION

Counsel for the Applicant: Ms J. Mundey

Solicitor for the Applicant: Harman & Co.

Solicitor Advocate for the Respondent: Mr J. Lynch

Solicitors for the Respondent: Barkus Edwards Doolan

ORDERS

1. All orders previously made pursuant to the Family Law Act 1975 are discharged.

2. The father and mother have joint responsibility in consultation with one another for making decisions concerning the long term care, welfare and development of “the child” H N B born in 2002.

3. The father has responsibility for the day to day care, welfare and development of the child when the child is in his care.

4. The mother has responsibility for the day to day care, welfare and development of the child when the child is in her care.

5. The father have contact with the child as follows:

   (a)Each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday.  In the event that the father is not at work on the Monday immediately following such weekend and provides the mother fourteen with fourteen (14) days prior notice of such availability then contact shall extend to 4.00 pm Monday.

   (b)For block periods being:

   (i)Until the child’s third birthday for four (4) periods of three (3) days/nights each year to be joined to weekend contact to be exercised by the father.  The father shall give the mother one months prior notice of his intention to exercise contact pursuant to this order.  Contact pursuant to this order shall exclude the period 4.00 pm 25 December to 10.00 am 26 December in even numbered years.  Contact pursuant to this order shall not exceed six (6) night’s duration on each occasion.

   (ii)Thereafter and until the child’s fifth birthday to be four (4) periods of one (1) week’s duration each, annually. Contact pursuant to this order shall not exceed seven (7) night’s duration on each occasion.  AND

   (iii)Thereafter for one-half of each New South Wales school holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2007 and each alternate year thereafter and for the second half of all such holidays in 2008 and each alternate year thereafter.

   (c)The Father’s Day weekend in each year from 4.00 pm Friday until 4.00 pm Sunday. 

   (d)In the event that Mother’s Day falls on a weekend when the father would otherwise be exercising contact it shall be suspended and instead occur on the following weekend.

   (e)By telephone at all reasonable times and with reasonable frequency and to include, but not limited to, telephone contact on the father’s birthday, the child’s birthday and Christmas Day.

   (f)By letter, card, e-mail and/or gift at any time and with reasonable frequency.

   (g)In the event that the father is within the same locality as the mother during the Christmas Eve – Boxing Day period from 4.00 pm Christmas Day until 4.00 pm Boxing Day in 2003 and each alternate year thereafter and from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in all other years.

   (h)For such further and/or other periods as agreed between the parties from time to time.

6. The father’s period of block contact pursuant to Orders 5(b)(i) and 5(b)(ii) hereof shall not include Mother’s Day in any year and shall not include Christmas Day or the child’s birthday more frequently than each alternate year.

7. SCHOOL HOLIDAY CONTACT:

   (a)SHALL commence at 9.00am.

   (b)SHALL conclude at 2.00pm. 

   (c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.

   (d)Pupil free days are deemed to be school holidays.

   (e)Christmas 2004/2005 is defined as a year ending in an even number.

   (f)Years ending in a zero are defined as years ending in an even number.

8. After the child starts school, if a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday.  If the public holiday is a Friday it shall start at the usual time on the Thursday. If it is a Monday it shall conclude at the usual time on the Monday.

9. On those occasions when the child is in the father’s care during the first half of the Christmas holidays, and she shall have contact from 4.00 pm Christmas Day until 4.00 pm Boxing Day.

10. Until the first weekend in September 2004, contact change overs shall take place at the contact centre operated by Interrelate at Orange at the commencement of each contact period and at the contact centre operated by Centacare at Campbelltown at the end of each contact period.

11. Both parties shall immediately do all things necessary to complete the intake procedures to participate in the contact change over centres identified in Order 10.

12. In the event that the parties are unable to immediately use a contact centre, contact change over shall take place at the Shell Roadhouse Lithgow and/or St John’s Anglican Church Camden whichever is applicable.

13. Thereafter contact change over shall take place at an agreed venue in Orange city centre at the start of contact and an agreed venue at Camden (or the town nearby to the mother’s home) at the end of contact. 

14. In the event that the child is delivered for any period of contact more than fifteen (15) minutes beyond the scheduled commencement time of contact then the contact period shall extend by the same period.

15. For the purpose of contact by telephone, e-mail, letter, card or gift:

    (a)Each party shall keep the other advised at all times of their landline telephone number and shall ensure that they maintain a landline telephone connection;

    (b)The father shall instigate such telephone contact;

    (c)The mother shall assist the child to initiate calls to the father should the child wish to contact him;

    (d)The mother shall provide to the child or arrange for another adult with whom the child is familiar, such assistance, as the child may need to read and comprehend such correspondence and to respond if he wishes to.

16. Each party shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

17. During contact the father shall enable the child to speak to the mother at reasonable times and with reasonable frequency should she or he wish to do so.

18. Neither party shall denigrate or permit any other person to denigrate the other party nor any member of the other party’s household in the presence or hearing of the child.

19. Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by the child.  This includes giving sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and also to visit the child if hospitalised.

20. Each party shall do all things and sign all documents necessary to authorise and direct any daycare, preschool or school attended by the child to discuss with the father the child’s attendance and progress, furnish reports and copies of any correspondence, photographs, newsletters or other written material produced by the centre or school and distributed to parents or relating to the child specifically.

21. Both parties shall be entitled to fully participate in all and any parent/student activities at the centre, preschool or connected with same.  In this regard the father shall give the mother reasonable advance notice if he is intending to attend the child’s school.

22. No earlier than four (4) months and no later than five (5) months from today pursuant to s.62(F)(2) Family Law Act 1975 the parties shall attend counselling as arranged for them by the Director of PDR Services of the Federal Magistrates Court.

23. Neither party shall allow, cause or permit the child to be known by any surname other than B.

24. All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.

25. The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

26. All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3014 of 2003

N B B

Applicant

And

E J S

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

The proceedings

1. These are competing residence applications about the parties' only child H N B.  H N B is 19 months old. 

Introduction

1. The parties' relationship was brief and volatile, featuring numerous separations and reconciliations.  After H N B's birth their longest period of continuous cohabitation was about six weeks.  This was immediately after H N B was born.  Although the parties stopped living together in mid October 2002, they maintained an intermittent yet significant relationship until early April 2003.

2. On 27 June 2003 the mother left Bathurst and since then has lived at her parent's home at Camden.  H N B lives with her.  The father has remained near Orange. 

3. Interim orders were made in this court on 4 September 2003. These interim orders provide, inter alia, that H N B has contact to his father each weekend, an arrangement both parties agree is too onerous to continue.  Both parties want H N B to live with them.  If he fails in his application for primary full time residence, the father proposed that H N B live with his parents on alternating weeks. 

The applications

1. N B B, “the father” started these proceedings when he filed an application for final orders on 28 July 2003.  At the hearing he moved on his amended application filed on 16 January 2004. Set out in the paragraph below are the orders he seeks.

   1.That the parties shall be and shall remain jointly responsible for making decisions with respect to the long term care, welfare and development of the child H N B born in 2002 and shall, as far as practicable, consult with each other prior to any such decision being made and shall endeavour to make all such decisions jointly and by consensus.

   2.That each party shall be responsible for making decisions with respect to the day to day care, welfare and development of H N B at such times as he is in their respective care.

   3.That the child H N B born in 2002 reside with the Applicant Father.

   4.That the mother have reasonable and liberal contact with H N B such contact to include but not limited to:

   (a) Each alternate weekend from 3 pm Friday until 5 pm Sunday and provided further that;

   (i)in the event that the mother is available to exercise contact on the Friday preceding such weekend and provides to the father 7 days prior notice of such availability then contact shall commence 3 pm Thursday; and

   (ii)In the event that the mother is available to exercise contact on the Monday immediately following such weekend and provides to the father 7 days prior notice of such availability then contact shall extend to 5 pm Monday;

   (b)For block periods being:

   (i)Until H N B’s 3^rd birthday periods of 3 days/nights on up to 12 occasions per year each to be joined to weekend contact to be exercised by the mother and the mother shall provide 14 days prior notice of her intention regarding same and such periods shall occur no more frequently than once per month;

   (ii)Thereafter and until H N B’s 5^th birthday to be 6 periods of 1 weeks duration each year, and

   (iii)Thereafter for one half of each NSW school holiday period as agreed between the parties and failing agreement for the second half of all such holidays in 2007 and each alternate year thereafter and for the first half of all such holidays in 2008 and each alternate year thereafter.

   (c)The Mother’s Day weekend in each year and from 3 pm Friday until 5 pm Sunday and provided that in the event that Father’s Day falls on a weekend when the mother would otherwise, pursuant to these orders, be exercising contact then such contact shall, for that weekend, be suspended and shall, instead, occur on the following weekend;

   (d)By telephone at all reasonable times and with reasonable frequency and to include but not be limited to telephone contact on the Mother’s and H N B’s birthday and Christmas Day.

   (e)By letter, card, email and/or gift at any time and with reasonable frequency;

   (f)In the event that the mother is within the same locality as the father during the Christmas Eve – Boxing Day period for a period as agreed between the parties or failing agreement from 3 pm Christmas Day until 3 pm Boxing Day in 2004 and each alternate year thereafter and from 3 pm Christmas Eve until 3 pm Christmas Day in all other years;

   (g)For such further and/or other periods as agreed between the parties from time to time.

   5.The mother’s periods of block contact pursuant to these orders shall not include Father’s Day in any year and shall not include Christmas Day or the child’s birthday (being also the mother’s birthday) more frequently than each alternate year.

   6.That for the purpose of contact being exercised by the mother that the mother shall collect H N B from the father at McDonalds Lithgow at the commencement of each contact period and at the conclusion of contact the mother shall deliver H N B to the father at McDonalds Lithgow.

   7.That in the alternative to orders 3-5 hereof that the parties shall have joint residence of H N B and to give effect to same:

   (a)   H N B shall reside with the father for the first week of each fortnight commencing 5 pm Friday and to conclude at 5 pm the following Friday;

   (b)   H N B shall reside with the mother for the second week of each fortnight commencing 5 pm Friday and to conclude at 5 pm the following Friday;

   And H N B shall pass between the parties at McDonalds Lithgow.

   8.That in the event that H N B is delivered for any period of contact more than 15 minutes beyond the scheduled commencement time of contact then the period shall extend by the same period.

   9.That each party shall have contact by telephone, email, letter, card or gift and to facilitate same:

   (a)Each party shall advise the other of their email address and keep the other advised of same at all times;

   (b)Each party shall keep the other advised at all times of a land line telephone number by which telephone contact can be exercised;

   (c)The party exercising contact shall instigate such telephone contact;

   (d)Each party shall take all steps to facilitate and encourage H N B to participate in telephone contact with the other and to do so without intervention or distraction or any person listening into such conversations to H N B’s observation or on another phone;

   (e)Each party shall provide to H N B all items that are received and addressed to H N B;

   (f)Each party shall provide to H N B or arrange for another adult with whom H N B is familiar such assistance as H N B may need to read and comprehend such correspondence and to respond if he wishes to.

   10.That each party shall keep the other advised at all times of their residential address, residential telephone number and an emergency contact number.

   11.That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of H N B.

   12.Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to H N B and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit H N B if hospitalised.

   13.That each party shall do all things and sign all documents necessary to authorise and direct any Day Care, Pre School or School attended by H N B to discuss with both parties H N B’s attendance and progress, furnish reports and copies of any correspondence, photos, newsletter or other written material produced by the centre or school and distributed to parents or relating to H N B specifically and both parties shall be entitled to fully participate in all and any activities at the centre, pre-school or school or connected with same.

   14.That each party shall do all things within their power to actively promote and encourage the relationship between H N B and the other parent and members of the other parent’s extended family.

   15.That neither party shall allow, cause or permit H N B to be known by any surname other than B.

   16.The parties shall, so far as practicable and save in the case of emergency relating to H N B’s welfare, communicate with each other by email.

2. E J S, “the mother” filed her response on 27 August 2003.  On 16 January 2004 she filed an amended response that sets out the orders she sought at trial. The orders she seeks are set out below.

   1.The child live with the mother.

   3. The father have contact with the child as follows:

   3.1 Each alternate weekend from 4 pm Friday until 4 pm Sunday and provided that in the event that the father is available to exercise contact on the Monday immediately following such weekend and provides the mother fourteen (14) days prior notice of such availability then contact shall extend to 4 pm Monday;

   3.2 For block periods being:

   3.2.1Until the childs 3^rd birthday four (4) periods of three (3) days/nights each to be joined to weekend contact to be exercised by the father and the father shall provide one (1) month’s prior notice of his intention regarding same, such contact shall exclude the period 4 pm 24 December to 10 am 26 December in even numbered years.

   3.2.2Thereafter and until the child’s 5^th birthday to be four (4) periods of one (1) weeks duration each; and

   3.2.3Thereafter for one half of each NSW school holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2007 and each alternate year thereafter and for the second half of such holidays in 2008 and each alternate year thereafter.

   3.3 The Father’s Day weekend in each year and from 4 pm Friday until 4 pm Sunday and provided that in the event that Mother’s Day falls on a weekend when the father would otherwise, pursuant to these orders, be exercising contact then such contact shall, for that weekend, be suspended and shall instead, occur on the following weekend.

   3.4 By telephone at all reasonable times and with reasonable frequency and to include but not limited to telephone contact on the father’s birthday, the child’s birthday and Christmas Day.

   3.5 By letter, card, email and/or gift at any time and with reasonable frequency;

   3.6 In the event that the father is within the same locality as the mother during the Christmas Eve – Boxing Day period as agreed between the parties or failing agreement from 4 pm Christmas Day until 4 pm Boxing Day in 2003 and each alternate year thereafter and from 4 pm Christmas Eve until 4 pm Christmas Day in all other years;

   3.7 For such further and/or other periods as agreed between the parties from time to time.

   4.The father’s period of block contact pursuant to orders 3.2.1 and 3.2.2 hereof shall not include Mother’s Day in any year and shall not include Christmas Day or the child’s birthday (being also the mother’s birthday) more frequently than each alternate year.

   5.For the purpose of contact being exercised by the father, contact handovers shall take place at the contact supervision/handover centre operated by Interrelate at Orange at the commencement of each contact period and at the contact supervision/handover centre operated by Centracare at Campbelltown at the end of each contact period.

   6.In the event that the child is delivered for any period of contact more than fifteen (15) minutes beyond the scheduled commencement time of contact then the contact period shall extend by the same period.

   7.For the purpose of contact by telephone, email, letter, card or gift:

   7.1Each party shall keep the other advised at all times of their landline telephone number and shall ensure that they maintain a landline telephone connection;

   7.2The father shall instigate such telephone contact;

   7.3The mother shall take all steps to facilitate and encourage the child to participate in telephone contact with the father and to do so without intervention or distraction or any person listening into such conversations to the child’s observation or on another phone;

   7.4The mother shall provide to the child all items that are received and addressed to the child;

   7.5The mother shall provide to the child or arrange for another adult with whom the child is familiar, such assistance as the child may need to read and comprehend such correspondence and to respond if he wishes to.

   8.Each party shall keep the other advised at all times of their residential address and residential telephone number and emergency contact number.

   9.Neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.

   10.Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition any treatment recommended or provided and to visit the child if hospitalised.

   11.Each party shall do all things and sign all documents necessary to authorise and direct any daycare, preschool or school attended by the child to discuss with the father the child’s attendance and progress, furnish reports and copies of any correspondence, photos, newsletter or other written material produced by the centre or school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in all and any activities at the centre, preschool or school or connected with same.

   12.Each party shall do all things within their power to actively promote and encourage the relationship between the child and the other parent and members of the other parent’s extended family.

   13.Neither party shall allow, cause or permit the child to be known by any surname other than B.

   14.The father and the mother have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the child.

   15.The mother have responsibility for making decisions for the day to day care, welfare and development of the child when he lives with her, and the father have responsibility for making decisions regarding the day to day care, welfare and development of the child when he is on contact visits.

   16.The father pay the mother’s costs of and incidental to these proceedings.

The issues

1. At trial, the primary issues were the following:

   ·The effect on the child of separating him from his primary care giver.

   ·If the child is primarily attached to the mother, the father's capacity to meet the child's emotional and psychological needs in the long term.

   ·Whether the mother has evinced a poor attitude to the child's relationship with his father, particularly by moving to Sydney.

   ·The nature and extent of any family violence.

   ·The parties' capacity to provide long term stability, including home, routine and education to the child.

   ·Whether or not contact changeover should be supervised, if so, for how long.

   ·Whether an equal shared residence arrangement would promote stability and the child’s long term interests.

The applicant's proposals and circumstances

1. The father is a 37-year-old solicitor who since July 2003 has practised as a sole practitioner working from home. Thus although he practices from home, he confers with his clients elsewhere.  His court appearances are predominantly in the central western region of New South Wales, the furthest away from Orange being Parkes and Cootamundra.  The father describes the Sydney portion of his practice as "going okay" by which he means he has a reliable Sydney referral base and comes to Sydney on a reasonably regular basis for work, the frequency of which was unclear to me.  From time to time the father has contemplated working part-time, but he has never done so.  Whilst his practice is in a start up phase he presently works two or three days each week.  I infer that he attends courts two or three days per week.  The father expects that his practice will grow.  Indeed, he established his own legal practice because he has always wanted to work in his own private practice, his expectation being that through hard work he will earn more than he can as a salaried lawyer.

2. If the father has H N B in his full-time care he will work no more than two or three days each week.  However not long after the interim orders were made, on the weekend that ended on 14 September 2003 he returned H N B early.  This was because he had court commitments that he needed to work on. This is a simple vignette which demonstrates that the father's claim that he can curtail his work so that it does not interfere with his capacity to care for H N B full time is not a hope that the court can be confident he can necessarily deliver. 

3. In May 2001 the father purchased a 120 acre property, “Michigan”, near Orange. The father's nearest neighbours are about 500 metres from his home.  If necessary they are available to help him with impromptu babysitting. The property comprises a three-bedroom home with a self-contained flat.  Exhibit A reveals that the house sits on a steep slope that falls away below the front verandas.  The father has put chicken wire around the veranda to prevent H N B falling over.

4. While he is at work the father would have H N B cared for by M G P.  Before H N B left for Sydney she took care of him as part of the Family Day Care scheme while both parties were at work.  M G P deposes, “There continues to be a full-time place at my home should it be required.  I'm aware of the applicant father's work commitments and am able to offer this placement with a great degree of flexibility, including overnight stays if required.”  The mother agrees that M G P is a competent child carer.  I am satisfied that the father has suitable alternate care arrangements available for H N B while he is working.  I am also satisfied that the physical environment at “Michigan” is adequate to provide for the child's physical needs.  I am not persuaded that the positioning of the house above the cliff, given the precautions the father has taken, presents an inherent risk of physical harm to the child. 

5. The father's brothers live overseas and his father lives in a northern Sydney suburb.  The father has spent some contact weekends at his father’s home and his father has also visited H N B during contact weekends at “Michigan”. 

6. After separation the father was assessed to pay $52 per month child support.  Effective from 18 January 2004 this surprisingly inadequate assessment increased to $833.42 per month. I accept the mother's solicitor's submission that since separation the father's financial contribution towards H N B's living costs has been inadequate and  reflects poorly upon his attitude to the responsibility of parenting.  It is no answer to say that he simply relied on the assessment that issued by the Child Support Agency.  He clearly had the capacity to make a proper financial contribution and should have done so.

7. On 4 September 2003 I made interim parenting orders.  These orders are set out below:

   (1)That “the child” H N B born in 2002 live with the mother.

   (2)That the father have contact to the child as follows:

   (a) Commencing 6 September 2003 each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday in relation to which contact changeover shall take place at the Shell Roadhouse Lithgow.

   (b) Each alternate Sunday from 11.00am to 4.00pm alternating between Camden and Bathurst and commencing in Camden on 14 September 2003.

   (a)At other times as the parties agree.

   (3)That for purpose of day contact in Camden the father shall collect the child from St John’s Anglican Church in Camden at the start of contact and return him at the end of contact to the same place.

   (4)That for the purpose of day contact at Bathurst the mother shall deliver child to the father at McDonalds’s Bathurst and the father shall return him to her at the same place at the end of contact.

   (5)That the father and mother have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the child.

   (6)The mother have responsibility for making decisions for the day to day care, welfare and development of the child when he lives with her, and the father have responsibility for making decisions regarding the day to day care, welfare and development of the child when he is on contact visits.

8. Since then contact has essentially occurred as ordered, with both parties demonstrating their commitment to regular contact.  Weekend contact changeover has taken place at Lithgow while day contact changeover alternates between Camden and Bathurst.  Because she is uncomfortable dealing with the father, on most occasions the mother has arranged for members of her family to complete the contact changeover.  Often she travels with H N B but leaves her mother or other family member to complete the actual changeover.  On the last five occasions of contact changeover she has been present and both parties agree that this has been incident-free.

The mother's circumstances and proposals

1. The mother is a 26-year-old justice officer.  When the parties met she was working as a justice officer at Orange.  The father was employed full time as a solicitor with the Legal Aid Commission of New South Wales. 

2. In May 2003 the mother started to look for work in Sydney.  On 27 June 2003 she and H N B came to Sydney while the mother completed a two-week university work placement.  They stayed with her parents at Camden.  During the final week that she was in Sydney, the mother received verbal advice that she had been selected for a justice position in Sydney.  Immediately afterwards she informed the father of the job offer and that she planned to accept the offer.  H N B and the mother have lived in Camden with the mother's parents ever since.  I accept the mother’s evidence as to her living arrangements.  These are identified at paragraphs 64 to 76 of her affidavit and are as follows.

   “I am presently living with my parents in Camden.  My parents are RS & CS aged 54 and 52 respectively.  Also living there are my brothers Thomas aged 18 and Tim aged 14.

   The home comprises four bedrooms.  My parents occupy the main bedroom, Thomas and Tim each have their own bedrooms and I share a bedroom with H N B.

   The home is close to shops, school, preschool, childcare, hospital, my workplace at Camden and otherwise has adequate accommodation for all of us.

   My family doctor at John Street, Medical Centre, at Camden is Dr Shane Grogan.  Since moving to Sydney I have taken H N B to the doctors once every couple of months.  At times I have also seen Dr Damassi who is Dr Grogan’s partner.  H N B has been in general good health since we moved to Sydney.  I have taken him to the doctor on one occasion when he had a virus.  At times he suffers from eczema and I have taken him to the doctor.  Otherwise I have taken him when he has had a cold that has not cleared up. On one occasion he had an ear infection and was given some antibiotics.

   H N B commenced at a local Daycare on 28 July 2003 where he attended two days per week until 18 August 2003.  From that time onwards H N B attended at the daycare centre each day from Monday to Friday coinciding with my return to full time employment with the Department of Justice.  I drop H N B off to his daycare mother, Ms Elizabeth Windsor, at her home each morning at between 8.00 am and 8.30 am.  Ms Windsor’s home is about five kilometres from my home.  I collect H N B from Ms Windsor’s home at between 4.30 and 5.00 pm each day and then travel back to my home.   On Wednesday mornings I drop H N B off at Ms Windsor’s home at about 11.00 am as he goes to music lessons in Camden between 10.00 and 11.00 am.  I stay home with him on Wednesday mornings.  H N B attends music lessons run by the Conservatorium of Music at Wollongong under the childhood music education program.  I go there with him.  He plays triangles, drums, bells and does dancing.  He enjoys this.  Annexed and marked with the letter “E” is a copy of a brochure from Wollongong Conservatorium of Music setting out particulars of the childhood music education program. 

   Ms Windsor has two children who are of school age.  She also looks after other children on a daycare basis before and after school but during the day H N B is the only child at her home.  I have observed H N B’s relationship with Ms Windsor and he appears to get on well with her.  I receive reports from the local daycare centre as to H N B’s progress at Ms Windsor’s home and they have all been positive.

   Ms Windsor’s home is a large new two storey home.  It is well appointed and is always clean and tidy.  The backyard is enclosed and there are security catches in the kitchen area, on stairways and places where H N B is not meant to go.  He always appears to be well cared for.  Ms Windsor often gives me photos of H N B’s activities during the day.  She also provides me with artwork completed by him.

   The daycare cost is subsidised by the government and I pay directly to Ms Windsor $51 a week.

   I work from 9 am to 5 pm but I will be working predominantly at Campbelltown, a ten minute drive from my parent’s home and I will have flexi time available to me so that I can adjust my hours so as to fit in with H N B’s needs.

   H N B is in good health and appears to be well adjusted.

   In the morning H N B gets up at about 7 am.  For breakfast he has one to two weetbix, a piece of toast and if he is still hungry a piece of fruit.  I then get him dressed and take him to daycare.

   I pack yoghurt, fruit, a drink, a sandwich or meal for heating, biscuits and a change of clothing and nappies etc.

   Of an evening I prepare his evening meal.  Often I prepare his meals on the weekends and freeze them.  H N B normally has whatever the family is having.  We normally have meat and two or three vegetables.  I chop up the meat and mash the vegetables for H N B and feed him.  H N B does not usually have dessert, although he will sometimes have custard or a yoghurt.  Of an afternoon I bathe him and get him ready for bed.  He goes to bed at about 7.00 to 7.30 pm.”

3. H N B's day care arrangements are about to change.  Ms Windsor, his day-care mother, is about to have a baby and will no longer do child care work.  On the Thursday prior to the hearing the mother interviewed Colette, a carer recommended to her by the Day Care centre.  Colette is a registered day carer.  She has a number of children at her home as well as her own two children.  I accept the mother's evidence that Colette's home is suitable for H N B's care and that she appeared to be a capable carer. Colette will take care of H N B for the same periods as Ms Windsor currently provides.  I am satisfied that the care arrangements that the mother proposes for H N B while she is at work are appropriate. 

4. Once the mother has paid her legal expenses incurred in these proceedings, she plans to leave her parents home and establish her own home with H N B.  Her ambition is to rent reasonably nearby to her parent’s home.  There is a possibility that H N B may need to change day carers, although this is something the mother is keen to avoid.  I accept the mother will do her best to ensure that Colette remains his carer for as long as possible. 

5. When the parties finally separated, the mother contemplated that H N B would divide his time equally between his parents.  However, she concluded that the arrangement would not succeed from either H N B's or the parties' perspective.  It was her belief that for H N B such an arrangement would not provide sufficient stability.  Also, she doubted the father's commitment to part-time work and hence his availability to care for H N B. Because he refused to accept that their personal relationship was over, the mother found dealing with the father increasingly distressing.  Eventually she realised that she would not be able to manage the degree of intimate contact with the father which is necessary if the parties shared their baby’s care. 

6. On 24 July 2003 the mother sought police assistance concerning an apprehended violence order.  Constable McWhinny issued a summons against the father on her behalf.  Following a defended hearing at Camden Local Court, on 17 October 2003 a two year apprehended violence order was made against the father.  The terms of the apprehended violence order are set out below:

   A.     The defendant must not engage in conduct that intimidates the protected person or any other person having a domestic relationship with the protected person.

   B.     The defendant must not stalk the protected person.

   1.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person.

   3. The defendant must not enter the premises at which the protection person may from time to time reside or work, or other specified premises in Camden.

   6. The defendant must not approach, contact or telephone the protected person, except for the purpose of arranging or exercising access to children as agreed in writing or as otherwise authorised by an order, or a registered Parenting Plan under the Family Law Act 1975.

7. The father has appealed the AVO, which appeal is listed for hearing in the District Court on 11 April 2004. 

8. Since separation the mother has financially supported H N B with little assistance from the father.  Her parents have helped her acquire furniture, clothing and other necessities.  E J S, in particular, complements the mother's care of H N B and all family members routinely assist with contact changeover. 

The Relevant Law

1. In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2).  Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed: B and B: Family Law Reform Act (1997) FLC 92-775. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.

2. Subparagraph (b) refers to the right of contact on a regular basis.  Fundamentally, it emphasises the desirability of contact.  Regular contact carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.

3. Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50 - 50 shared parenting application pursuant to the current legislation should consider. There is a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (supra).  In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975.  In doing so they reviewed the English and Canadian authorities.

4. Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked.  The English law gives the person who has a residence order the authority to manage the child’s daily life.  In Australia that arises pursuant to a specific issues order.  An order for residence will do no more than determine with whom a child will live.  The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[1]  One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act 1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[2]  In Canada, decision-making authority is part and parcel of any order for custody.  As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live.  Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[3]  It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody).  The maximisation provision is, of course, not absolute.  It will be restricted to the extent that it conflicts with the best interests of the child.[4]

   [1] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.

   [2] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.

   [3] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children.  Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable.  However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”

   [4] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4^th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.

1. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:

   ·The parties’ capacity to communicate on matters relevant to the child's welfare.

   ·The physical proximity of the two households.

   ·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   ·The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment? 

   ·Whether the parties agree or disagree on matters relevant to the child's day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   ·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

   ·Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra curricular activities.

   ·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes?  If the child leaves necessary schoolwork or equipment at the other home will the parents readily rectify the problem?

   ·Whether or not the parties respect the other party as a parent.

   ·The child's wishes and the factors that influence those wishes.

   ·Where siblings live.

   ·The child’s age.

2. This list is not exhaustive.  It does no more than set out some usual factors that other courts have considered in similar cases.  All of these factors fall within s.68(F)(2) and are consistent with s.65E, which remains the imperative.

Determining the child’s best interests

1. At 19 months of age, neither party contends that H N B has the maturity or capacity to articulate any wishes he may have.  I am satisfied that he has no wishes that the court should take into account. 

2. That nature of the child’s relationships is a pivotal issue.  During cross-examination the father conceded that the mother has been primarily responsible for H N B's care since his birth.  I agree with him.  I am satisfied that she is the only person who has been intimately involved in H N B’s care continuously since he was born.  After numerous separations the parties resumed cohabitation at the time of H N B’s birth. The mother visited the father at “Michigan” the night before H N B was born. The father’s attentiveness to her and H N B while she was in hospital persuaded her that she should once again try living with him. Upon their discharge from hospital the mother and H N B moved to “Michigan”.  The father had taken leave from the Legal Aid Commission for the dual purposes of working on the property and being available after H N B’s birth.  He returned to work full time on 5 August 2002.  The mother breastfed H N B but in all other respects the parties were jointly responsible for his care for the first six weeks of his life.

3. Between 5 August 2002 and until the mother returned to work on 30 September 2002 she cared for H N B during the day on her own. It was the parties’ practice that the father settled H N B down at night after he came home from work. 

4. On 30 September 2002 the mother resumed part time work, working three days per week with the Department of Justice.  When she did so H N B went into daycare with M G P and B P.  On her work days the mother delivered H N B to M G P and B P at about 8 am and collected him between 4.00 and 4.30 pm.  I infer that the father did not do so because he worked longer hours than the mother did. On the days that she was not working the mother cared for H N B alone. As with the earlier period the mother’s actual care of H N B was significantly greater than the father’s.

5. The parties separated on 12 October 2002.  They did not resume cohabitation although they did spend considerable time together. 

6. For the first two weeks after separation the mother and H N B stayed with friends.  Whilst there the mother obtained rented accommodation in Bathurst.  She and H N B lived at Bathurst until they moved to Sydney in July 2003.

7. Although they did not cohabit, the father regularly stayed at the mother’s home at Bathurst and she and H N B regularly stayed at “Michigan”.  For example, in November 2002 they spent between eleven and twelve nights of the month together.  In December 2002 they went to Brisbane for five days and the father stayed at Bathurst for a few days.  Also, the mother stayed at “Michigan” for a few days.  They spent a few days together in January 2003 and a few days together in February 2003.  They spent fourteen days together in March 2003.

8. The first time the father cared for H N B on his own overnight was on 25 and 26 March 2003.  This coincided with a university trip that the mother made to Wagga.  Until this occasion the father’s contact with H N B had always been in the mother’s presence.  When the father stayed at Bathurst with the mother he also had contact with H N B.  When the mother stayed at “Michigan” she always took H N B with her. There were three different periods of a few days each during April 2003 when the parties spent time at one another’s homes.  The longest was between 13 and 26 April 2003.  Between 27 and 30 April 2003 the father took care of H N B on his own while the mother was at Wagga for university course work.

9. The mother said that on numerous Wednesday evenings in the first half of 2003 the father had overnight contact to H N B at “Michigan”. The father, who appears to have diarised every interaction between the parties, was able to accurately recount that he had Wednesday overnight contact less extensively than the mother recalled.  Although a little confusing it appears that he says Wednesday night contact alone started on 21 May 2003.  His recollection appeared more certain and I accept his evidence on this issue.  At all other times, H N B was in his mother’s exclusive care.

10. During May 2003 the parties were together one weekend when the father was in Parramatta for work and stayed at the mother’s parents home and three other over night occasions.

11. The parties finally separated on 26 June 2003, H N B’s first birthday.  Since then H N B has lived with his mother and until the interim orders were made the father only had limited day contact. 

12. Both parties acknowledge that H N B enjoys a good relationship with each of them. Although the father recounts with commendable detail his time spent with H N B, he did not appear to appreciate the significance to H N B of his substantially greater care by his mother.  From H N B’s perspective his relationship with his mother has been the only continuous element in his life.  Day in and day out he has been able to rely on her presence. R K and C S give evidence that H N B is settled and happy with her.  His presentation and behaviour to both of them corroborate that the mother takes good care of H N B.  By virtue of her substantial primary care as well as her competent and loving parenting, I am satisfied that H N B’s primary attachment is to his mother.  From her he derives his sense of stability and well being.  Living with his mother is essential to his sense of stability and also his happiness.  Separation from his mother, because she is his primary attachment figure, at this age and for the years to come is likely to be traumatic for him and have adverse consequences for H N B’s emotional and psychological well being. It is likely that leaving his mother’s care will engender strong feelings of loss.  This is an important matter to which I give considerable weight.  It weighs substantially in favour of the mother’s application for residence.

13. H N B’s relationship with his father is strong but it does not have the same centrality to H N B’s daily life that his relationship with his mother has.  He is used to spending short periods of time with his father and longer periods away from him.  His relationship with his father accommodates his father’s regular absence from his life without undermining H N B’s routine and his sense of stability.  Because H N B is excited to see his father at the start of contact and in recent times has been reluctant to end contact, the father says that H N B demonstrates a closer attachment to him than his mother.  I do not accept that this necessarily follows.  There is no doubt that H N B is attached to his father which attachment is confirmed by H N B’s delight when they meet.  His happiness at seeing his father suggests that the mother supports their relationship and engenders a degree of anticipation before contact.  H N B is at an age where children often find separation difficult, not because they are more strongly attached to the person they are leaving behind but as a function of age and inability to fully comprehend what separation means.  I did not perceive the same positive approach to changeover in the father that is apparent in the mother’s approach.  Even if H N B was prepared as well as is possible for return to his mother, it is not surprising that leaving his father can be upsetting.  Because H N B is settled after his return to his mother and the evidence demonstrates that he is happy and comfortable in her presence I am not persuaded that recent upset at leaving the father indicates a stronger attachment to him.  Clearly, however theirs is a relationship that it is fundamentally important to develop and nurture.  Developing and nurturing H N B’s relationship with his father must be balanced by the child’s capacity to cope with change and to cope with periods of time away from his primary caregiver.  H N B is not of an age where a parent can explain the significance of frequent or longer periods of separation. This is not an issue about parenting capacity but rather examining the situation from H N B’s perspective. At his age and stage of development continuity of primary attachment is important as this is usually recognised as maximising a child’s emotional and psychological wellbeing.  Because the father has never been H N B’s primary caregiver, his capacity to meet the child’s emotional and psychological needs in the short term is limited and in the long term uncertain.  This weighs heavily in favour of the mother’s application and against the father’s primary and alternate residence applications.

14. H N B has a good relationship with his maternal relatives, particularly his maternal grandmother.  He has lived with them continuously since the middle of last year.  He is likely to find separation from them in the short term upsetting.  Those relationships are not as critical as H N B’s relationship with both of his parents and this is not a factor to which I give any meaningful weight.

15. H N B has a comfortable relationship with his paternal grandfather.  Whether H N B lives with his mother or his father that relationship will endure and be nurtured in much the same way that the parties have managed this relationship in the time since H N B was born.

16. H N B is well settled residing with his mother and benefits from her primary care. I have already made findings in relation to the significance to H N B emotionally and psychologically of having his mother available to him on a continuing basis.  There will be a change to the mother’s accommodation, perhaps also to his day carer if H N B resides with his mother.  I am confident that the mother will make appropriate choices in accommodation and if a change in carer is necessary, when selecting the next possible daycare mother. Ms Windsor describes H N B as happy and well behaved in her care.  That is primarily attributable to the mother’s competent care. 

17. The father’s proposals involve significant change for H N B.  Firstly, he would move to “Michigan”. H N B is familiar with the surroundings at “Michigan” and in terms of adapting to the changed physical environment, it is likely that he would adapt quickly.  M G P would resume H N B’s care when the father was at work.  H N B was last in her care in the middle of 2003.  He has seen M G P during contact occasions, at barbeques and community activities.  Although it might take H N B a short time to settle back in with M G P, the probability is that he would adjust to a change in daycare arrangements without any adverse consequences.

18. The father’s proposal involves him for the first time having responsibility for H N B on a full time basis. I have real doubts about whether he would be able to strike a balance between career and full time responsibility for the child. I doubt that the father really understands the consequences to his career of assuming the full time care of a toddler.  The mother has been able to do so.

19. A more significant issue, however, is separating H N B from the mother.  I am strongly satisfied that contact by H N B to his mother as proposed by the father is an inadequate substitute for full time care.  It is highly likely that H N B would be deeply distressed at separation from his mother and that his capacity to trust his relationships with others would be severely undermined. There is nothing about the mother’s care that suggests the child should be put through this distress.

20. When a child is apparently settled and happy living with his or her primary caregiver and attachment figure, courts are usually loathe to disturb arrangements that are meeting the child’s needs and are likely to continue to do so.  This does not mean that there is an onus on the father to show that a change in the status quo will bring about a positive benefit to the child.  The cases make it abundantly clear that there is no such onus. Simply put, I am satisfied that this is a case in which the quality of the status quo and in particular the nature of the relationships developed within in it justify the court giving considerable weight to the effect on the child if it is changed, see Bennett (1991) FLC 92-191.

21. I will deal briefly with the issue of shared care.  The father’s arrangement would involve H N B living with his mother one week in two at Camden.  During that week Ms Windsor would care for H N B while his mother was at work.  On the other week he would live at “Michigan”.  He would be cared for during the day by M G P while his father was at work. In each home and environment H N B would have different friends, different carers, different doctors.  The parties live so far apart that there is no prospect that they could use the same people or agencies.  I was surprised that at only 19 months of age the father proposed this arrangement. It gives inadequate recognition to or demonstrates knowledge that children H N B’s age need reasonable stability and routine. The shared care arrangement when the parties live so far apart is one that could best be described from H N B’s point of view as organised chaos.  It is made more problematic by the parties’ inability to communicate with each other.  I have had no expert evidence that indicated that the father’s proposal for shared care for a child of this age and in the circumstances these parties propose would enable H N B’s emotional and psychological needs to be met.  The evidence that I did have available indicated that it would not.

22. I do not dwell on this aspect of the application, as eventually the father recognised that this shared care arrangement was ambitious if not untenable.  Presently there is no viable mechanism that the parents can comfortably use to communicate matters about H N B.  The mother sends notes that give some basic information, but these are a poor substitute for effective communication. There is no evidence that the father has responded to the notes.  Living in separate homes during these important developmental years requires skilled and cooperative communication on matters concerning H N B’s care.  For example, managing his teething, walking, toiletting, ill health, to identify but a few.  Presently even trivial issues provoke sarcasm and at times patronising behaviour from the father towards the mother. 

23. For example, one issue concerned late arrivals for contact changeover.  These journeys are made on Friday afternoons at peak hour.  I accept the evidence that the drive from Camden to Lithgow on late Friday afternoons is marred by heavy traffic. At paragraph 116 of his affidavit the father says:

    “At 4.30 pm E J S’s mother delivered H N B to me at Camden. I had a conversation with E J S’s mother to the following effect.

    ME: Gee C S, you’ve only got a kilometre to come and you’re still late.

    C S: We had to have a play.

    ME: Fair’s fair, you’ve got him full time and I’ve got to travel back to “Michigan”.

    C S then handed H N B to me.

    I said to H N B, “Come on mate, we’ll get some justice one day.”

    C S said, “No you won’t, you’ll never get justice. You lost, lost, lost, lost.”

24. That day the parties had been at Camden Local Court where the mother’s application for the apprehended violence order was heard.  They were still at court at 4 pm.  C S left the court at 4 pm, retrieved H N B from daycare and had him back at Camden at 4.30 pm.  I do not understand why the father felt it necessary to make the sarcastic comments that he outlines in his affidavit.  Including it in his affidavit suggests that he believes even now, that his comments were appropriate.  In my view, they were not.  The fact that they were made in H N B’s presence is even more concerning.

25. The father recounts another conversation[5] at the end of contact changeover.  He says this:

    “When I returned H N B on the Sunday, 16 November I arrived at the changeover venue at 3.55 pm. E J S’s parents, C S and RS, were waiting at the venue. I said to E J S’s parents, “Why are you always late to drop H N B off but you manage to get here on time to pick him up?” C S smiled at me and said, “It was the traffic”.

    [5] Paragraph 138

26. The following week, having arrived at 4 pm, E J S said the father was unpleasant to her at changeover.  She describes the exchange, “Why are you always late?” I said, “Well, I have to take time off work to get here and sometimes we’re delayed in traffic”. I continued to explain why we were late and I saw N B B mouth the words ‘fuck off’ at me. I was upset by this.”

27. I accept her evidence about this incident and that she finds dealing with the father upsetting. I accept E J S’s evidence that difficulties arise because of the traffic. Sunday afternoon traffic is not as heavy travelling west as it is on Friday afternoon, so it easier to be on time.  The father is travelling from Orange to Lithgow and the traffic he must deal with is not as heavy.  He is an intelligent person and ought to realise this obvious fact.  For reasons known only to him, he prefers to be unnecessarily difficult, creating rather than alleviating stress.  This corroborates to an extent the mother’s evidence that she finds dealing with the father difficult and unpleasant.

28. On 9 November 2003 the mother took H N B to Camden Hospital.  He had been ill all week with a middle ear infection.  On the previous weekend the father had taken him to Orange Base Hospital with the onset of the infection.  The mother took the week off work and H N B saw a doctor on Monday and Thursday.  When he was still ill on the Sunday morning the mother took him to the hospital.   At the mother’s request E J S tried to contact the father to tell him that H N B was too sick for contact.  However he had already left “Michigan” and she did not catch him in time. The father waited at the changeover point unaware of what had happened.  Eventually he telephoned the mother’s home and spoke briefly to her mother.  C S did her best to avoid giving the father information about how he could contact the mother and which hospital she was at.  I accept she did not know when the mother left their home whether she was going to Camden or Campbelltown Hospital.  However, C S could have been more frank with the father about what was happening with H N B.  The probability is that C S was concerned that her daughter would find the father’s presence at the hospital distressing and distract her from her being able to focus on H N B. Unable to get a straight answer the father made a number of calls to the emergency departments at Campbelltown and Camden hospitals and ascertained that H N B was at Camden hospital.

1. Both parties give a different account of what took place when the father arrived at hospital.  The father says that in the 2-3 hours they waited at the hospital he spoke to the mother for 2-3 minutes about H N B.  Only as they were leaving did he raise the proceedings and suggest that they resolve their dispute without lawyers. The mother agreed and suggested counselling.  The mother says that the father tried to discuss the proceedings with her while they were waiting and again in the carpark.  She does not complain about the conversation per se, but says that she made it clear to the father that she did not want to discuss the proceedings and that nonetheless he persisted.  Basically that once again he refused to leave her alone. In this instance I prefer the mother’s account, her testimony is consistent with her course of conduct trying to keep the father at a distance and not discussing relationship and other issues with him.  The father says that even on the mother’s version there is no reason for the mother to have been concerned about his conversation with her that day.  I accept that because of some of the issues that have occurred during their relationship the mother did find his presence and persistence difficult, something the father cannot accept.

2. The significance of these events is that they emphasise the high level of tension that exists between the parties including the father with the mother’s family.  This demonstrates that reliable communication needed to give effect to a shared parenting arrangement is likely to be beyond these parties for a considerable period.  Although the father’s proposal for shared parenting has the advantage of increasing H N B’s time with him, there are other matters as I have already indicated more pressing in terms of the child’s welfare that militate against it.

3. The father was concerned that prior to cohabitation the mother told him that she had used amphetamines with her former fiance, which she agreed she had done.  She proffered during cross-examination that since separation she also used amphetamines on one occasion at a Christmas party.  H N B was at home with her parents at the time.  Amphetamine use is illegal.  The mother was somewhat glib when dealing with her recent use of amphetamine.  Mr Lynch emphasised that the mother could confidently have withheld that information from the court and that the court would not have known about it.  I accept his submission. It was clearly evidence against her interest but it was also evidence the giving of which reflects well on the mother.  There is no suggestion that during cohabitation she used amphetamines and I am satisfied that since separation she has used amphetamines once.  The risk that the mother will again use amphetamines is low and is unlikely to impact on her capacity to care for H N B.   There is no risk that the father will use amphetamines.

4. Both parties consume alcohol and the probability is that at different times both of them have drunk it to excess.  For example on 21 February 2003 while affected by alcohol the mother provoked an argument because the father’s mother had disputed H N B’s paternity.  It culminated in her calling police and asking them to remove the father.  On the Easter weekend 2003, having been to the Easter show the father says that after they returned to his father’s home, the mother consumed alcohol and another argument erupted.  The mother agrees that she had a few glasses of wine however denies that she was over the legal limit to drive.  The fact that the father’s father took her car keys persuades me that she probably was over the legal limit.  The mother says that when the parties were together, both would drink alcohol together.  Her evidence is to the effect that neither party routinely consumed alcohol to excess but that on occasion both did.   I accept her evidence and am not persuaded that the evidence in its totality demonstrated that alcohol misuse by either of them compromised their capacity to take care of H N B. 

5. I will deal now with the issue of domestic violence. I will deal with subsection 68F(2)(g), (i) and (j) together.  Family violence is a relevant issue in these proceedings.  It is not the role of the court to determine the truth of allegations in the way that a criminal court must do.  In M v M (1988) 166 CLR 69, the High Court discouraged such findings, saying that there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. These statements are equally apposite to the issue of family violence. Before it can make a positive finding, the court needs to be satisfied according to the civil standard of proof. See s.140 of the Evidence Act 1994 (Cth). If the court determines that it cannot or should not make a positive finding that there has been abuse the court must determine whether in all the circumstances there is an unacceptable risk.

6. The manner in which the court conducts an assessment of the risk of future harm is set out in A v A (1998) FLC 92-800. The findings made in the assessment of risk address part of the court’s responsibility. Whilst the resolution of the risk issue may be the central issue in the proceedings the court’s role is broader. If the court reaches the conclusion that there is no unacceptable risk, the court must consider the separate issue of the parties’ belief in the occurrence of the events. This is another part of the court’s obligation.

7. Factual issues such as this are difficult to adjudicate.  That is because there are rarely witnesses who can corroborate an allegation or its denial.  Courts frequently accept the uncorroborated testimony of victims of family violence, relying to no small degree on the integrity of the witness.  It is reasonable and necessary that they are prepared to do so.  It is the court’s experience that people who have been the victims of family violence often find themselves in a relationship with a partner who can be dominating and the victim often does not have the strength to in effect stand up to the more dominating partner.  The reality is that many victims of family violence return to the abuser and in a state of confusion and despair find gaining the strength to leave an abuser beyond them.  The fact that the mother returned to the father after she says he assaulted her does not in my opinion detract from her evidence that he was violent towards her.

8. I was surprised at the prominence the domestic violence issue achieved in this case.  This is because the mother made it clear that she does not suggest that the father was repeatedly or ever severely violent towards her.  She does not claim that he is a poor role model because of past violent or what she described as “verbally abusive or erratic behaviour”.  The relevance from her perspective is that her experience of the father as her partner makes her tense and anxious about him. The mother gave a clear and credible account that she was grabbed, pushed and pulled through “Michigan” on 26 June 2003.  She said:

   “At about 3 pm on 26 June 2003 I took H N B to N B B’s home near Orange  where we planned to stay the night.  At about 9 pm I checked my phone for messages.  I then told N B B that I had secured a position for a job interview in Sydney.  We had an argument about me moving to Sydney which lasted a short time.  I went to bed but could not sleep so I got up and laid on the lounge.  As I was lying on the lounge N B B came out and the fight continued.  I got up to walk to the spare room and N B B followed me.

   I then felt N B B push me from behind with two hands and I fell onto the bed in the spare room.  I got up and said, “You have gone too far”.  N B B said, “So you are going to tell all your friends that I bash you”.  I said, “I’m leaving”.  I kept trying to leave the room, but each time I tried N B B would stand in the doorway and would not let me pass.  He grabbed hold of my arms and held them tightly for a few seconds and then let go.  Each time I tried to get through the door N B B kept grabbing my arms and would not let me pass.  He kept saying, “I’m not letting you go”.

   I managed to get out of the room and started to pack my car with my things.  I then thought I might be over the limit so I decided to stay at N B B’s home and sleep on the lounge.  N B B then came out of his room and said to me, “You’re not staying here, fuck off”.  He then grabbed both my arms by the forearm and dragged me off the lounge, through the lounge room and kitchen to the front door.  I kept struggling and tried to get away but his grip was tight.  I said, “I will sleep on the lounge and be gone first thing in the morning”.

   I managed to get away from N B B and ran back to the lounge room.  N B B came after me and grabbed me again by the forearms and dragged me back through the lounge room and kitchen to the front door and kept saying, “Fuck off, get out of here”.  I managed to get away and run back to the lounge.  N B B said, “Okay, you can stay on the lounge”.  He then left me and went to his bedroom.

   I was crying on the lounge and N B B came out and said, “Do you still not want me to touch you?”  I did not say anything and he went back to his bedroom.  I then heard N B B come out of his bedroom a short time later and I knew I had to leave.  I got my keys and left.  H N B was still asleep so I left him on the lounge.

   The next day I noticed that I had bruising on my back and on both of my arms and I went to see Dr Ruth Morgan at Orange.  At that time I formed the view that there was no prospect of a reconciliation.”

9. Dr Ruth Morgan observed the bruising[6].  It is clear that the bruising to the mother’s back and arms is consistent with her evidence about the incident that evening.

   [6] Exhibit B

10. The father’s claims about the incident are also consistent with the bruising to the mother’s back and arms.  He said:

    “E J S then tried to push past me to get to H N B.  I stood in her way.  She was hitting out at me and I grabbed her arms.  She was pushing against me, using her weight to get past me.  She was determined to get past me to take H N B.  I stood my ground and then, due to her intoxication, she lost her balance.  I held on to her to prevent her from falling hard and started to lose balance myself.  As she fell she continued to thrash out at me, using her feet and kicking at me.  I assisted her back onto her feet and she stopped kicking and hitting me.

    I felt extremely tired and I did not wish to argue any further with her.  I said, “Assure me you won’t drive with H N B.  Sleep it off”.  E J S said, “I won’t take H N B, but I’m going to sleep in the car”.  I then said to E J S, “You’ll freeze.  Grow up”.

    I then went in to check on H N B.  He was lying there with his eyes open.  I picked him up and cuddled him to reassure him.  I went to bed and then I heard E J S using the telephone.  It was after midnight.  I went out to her and said, “Either go to sleep or go somewhere else, you’re disturbing H N B and me”.  She then left my home shouting at me as she left words to the effect, “Have H N B at the gym by 9.00am”.

11. He says that during the incident he was basically trying to restrain the mother because she was thrashing about and physically attacked him. There is no suggestion of any injury to the father. He makes no claim that he was scratched, bruised, scraped or that any action of the attack that he describes resulted in any injury to him. This indicates that the father used more force to the mother than she used to him. In my opinion the absence of any bruising or marks to him is more consistent with the account of the incident given by the mother than by the father.  I accept her evidence concerning this incident. That evening both parties were affected by alcohol, something which can contribute to angry and at times, violent outbursts. It appears that it did on this occasion.  There has been no violence since separation.  I am satisfied that the father does not present a continuing risk to the mother of physical harm.

12. Both parties agree that theirs was a volatile relationship.  Both recount ferocious verbal arguments to which both contributed.  Their many separations were almost always preceded by ferocious arguments with most unpleasant accusations flying between the parties.   The mother went from “Michigan” when she says she was unable to cope with the ferocity of the arguments.  For his part, the father seems to have been far less perturbed by what seems to have been most unpleasant and aggressive verbal exchanges. The father gave his evidence in a confident, articulate and forthright manner.  He was comfortable engaging in debate with the mother’s solicitor even though he was in the witness box being cross-examined.  The mother was also a clear and able communicator but did not demonstrate the same confident persona that the father has.  The father is eleven years older than the mother. Whether it is a factor of personality, maturity, sensitivity or something else, I am satisfied that the mother was not able to deal with the ferocity of his verbal attacks on her and still cannot face dealing with him without feeling highly anxiety and stressed. Not as a consequence of some contrary desire to make life difficult for him, but simply because she wishes to avoid the prospect of further unpleasant exchanges.  I accept the mother’s evidence that she needs time before she is required to deal with the father on contact changeovers.  That is to protect her from verbal exchanges that she is presently unable to deal with.

13. The current issue is a risk of verbal rather than physical abuse.  If the father feels that he can engage in sarcasm and tell C S to “fuck off” within weeks of a final hearing, there needs to be more time of demonstrated superior behaviour before I could be satisfied that he could manage contact changeover in an appropriate fashion.  This is a factor to which I give considerable weight in terms of the mother’s proposal that for a time contact changeover should be supervised.  The father says that this will be embarrassing for him professionally.  I was perplexed by this submission and do not accept it.  The purpose of a contact changeover centre is to make contact changeover easy from the child’s perspective. In this case this will be achieved by enabling it to take place without the mother being stressed before and during changeover. Both parties can be expected to maintain their privacy.  I see no reason why the broader community, whether it be Orange or Camden would be aware that they use a changeover service or that any adverse inference will necessarily be drawn from the fact that they do so.

14. So that the parties can move forward and reach a stage where at least some form of civil communication can pass between them, they will be ordered to attend confidential counselling.  This should not take place too soon enabling both parties to reflect on the hearing and adapt to the outcome. Four months after this hearing is over the parties shall attend counselling as arranged for them by the Director of PDR Services of the Federal Magistrates Court.  Because the mother is working full time and the father is able to at least arrange some time during the week when he does not have to be at court, that counselling should take place at a venue more convenient to the mother’s home.  My hope is that the parties will achieve some equilibrium and capacity to discuss matters concerning H N B’s long term care, welfare and development. I am optimistic that they will make gains and that both should have responsibility for making decisions concerning his long term care, welfare and development.  This is a shared responsibility, not joint and several.  It will require the parties to discuss major issues concerning their son and to reach agreement.  If unable to agree they must return to court.  The benefits to H N B of having both parent’s make decisions together concerning his long term interests are outweighed by the minor risk of further litigation.  Because H N B will live primarily with his mother, the father will need to factor that in when planning his future.  I also make a series of specific issue orders that will ensure the parties give each other information, which as parents both should have.  Together with a non denigration order, this sets a framework, which will enhance improved communication and limit the child’s exposure to unfortunate criticism of either parent.

15. The combination of counselling and easy changeovers at the contact centres will enable the mother to feel more confident about self managing changeovers.  However even if the mother still feels uneasy about dealing with the father by September 2004 the use of contact changeover centres will no longer be necessary.  The magnitude of the risk is not such that I consider it reasonable that finite community resources are taken up indefinitely.

16. I am strongly satisfied that both parties are motivated to give H N B the best opportunity for a happy and successful childhood.  Both parents have tertiary education and are well placed to meet his intellectual needs.  Both are motivated to ensure that he receives a good education.  Physically, H N B’s gross and fine motor skills appear to be developing in accordance with his chronological age.  He has a vibrant time when he is at “Michigan”, with the animals and out on the property.  Both parties have the capacity to ensure that physically the environment H N B lives in is appropriate. Emotionally, the key difference centres upon the fact that the mother has been H N B’s primary caregiver. The father’s capacity is compromised because H N B’s primary attachment is to his mother.  In simple terms, the father has not been H N B’s primary caregiver and H N B is unlikely to accept or be able to respond to any other person other than his mother providing his emotional needs on a long term basis without considerable trauma.  There is no need to force that trauma on the child given the competent care provided by the mother.

17. It must be apparent that I consider that H N B’s long term interests require that he lives with his mother and has contact to his father.  At H N B’s age I am satisfied that the court should emphasise shorter and regular periods of contact and should not expect him to cope with long separations from his mother.  Factored into his capacity to cope with periods of separation from his mother must be that each contact occasion involves about a five-hour journey at the beginning and end of contact.  For a child of H N B’s age this is tiring.  The parties obviously find it wearing themselves and both agree that it is too much for H N B to undergo every week. Asking him to cope with more than he is able to easily manage is likely to undermine the quality of contact and hence put pressure on his relationships rather than enhance them.  If the trips are too frequent he will come to resent both parents, his mother for forcing him to take a journey he does not want to make and his father because he is overtired when with him. A pattern of regular alternate weekend contact strikes an important balance between developing the child’s relationship with his father and meeting his emotional and psychological need for his mother’ substantial care. This will be supplemented by contact on special occasions and gradually longer periods will occur.  The first stage for longer contact will coincide with H N B’s third birthday. By then he will have become accustomed to contact and my expectation is that he will be able to manage contact of up to one week’s duration.  Four one week periods of block contact annually will give the child to enjoy his father and his father’s home in a meaningful fashion.  The father will be able to be hands on in terms of exercising parental responsibility in a positive fashion that will enhance the parent/child relationship.  Upon H N B turning five block periods extend further, coinciding with half of the school holidays.  Preceded as it will have been by regular block periods of a week’s duration, at five I am satisfied H N B will be emotionally and physically ready for these longer periods.  The developing nature of contact involves balancing the child’s need for a reasonable routine and ability to spend longer periods away from his primary carer.

1. I understand why the father is impatient for more contact with H N B.  He is devoted to his son and said quite forcibly that he does not regard alternate weekend contact as an acceptable basis for his relationship with H N B.  He spoke from his heart when he said this.  However heartfelt the father’s desire for greater involvement in H N B’s life is I must examine the situation from the child’s point of view.  I am not persuaded in this case that H N B is likely to be able to cope with the more frequent and longer periods of contact that the father proposes without jeopardising the child’s relationship with both parents.  Viewed from H N B’s perspective the proposal is somewhat chaotic and too ambitious for a child of his age.   Simply put he needs greater routine than the father’s contact proposal provides if he is to continue to have his emotional and psychological needs met.

2. Parenting orders are never final in the sense that the court always retains jurisdiction to make orders in relation to children.  To the extent possible the court should make orders that are enduring.  The father said that he might bring further applications for residence.  He postulated that he may move to Sydney and if he did so, he would bring another application for shared residence.  These orders take into account that the father may live geographically closer to H N B than he does presently.  Distance has been only one factor, which has led me to conclude that reducing the mother’s primary care is contra-indicated.  I have emphasised H N B’s primary attachment to his mother and the importance of her availability to him on a day by day basis to his sense of emotional and psychological well being.  Living closer does not undermine the force of the finding that I have made.  The father ought to think carefully before he brings further proceedings predicated upon geographic proximity.

3. The orders I make I am satisfied are in the child’s best interests.  They do not provide for the more frequent and longer periods of contact that the father proposed should he fail in his application for primary or shared residence.  On balance, the rhythm of contact proposed by the mother was more age appropriate and sets the scene for H N B to develop and maintain a good relationship with both parents without compromising his sense of stability.

4. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:  S. Mashman

Date:  27 April 2004