BANNING & WYLIE - [2009] FMCAfam 1049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BANNING & WYLIE

[2009] FMCAfam 1049

FAMILY LAW – Parenting orders – consideration of an equal shared care arrangement.

Family Law Act 1975, Part VII

Rice v Asplund (1979) 6 Fam LR 570
T v N (2004) 31 Fam LR 281

Applicant:

MR BANNING

Respondent:

MS WYLIE

File Number:

NCC 2346 of 2008

Judgment of:

Lapthorn FM

Hearing dates:

15, 16, 17 & 27 July 2009

Date of Last Submission:

27 July 2009

Delivered at:

Newcastle

Delivered on:

9 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Brian Kelly

Solicitors for the Applicant:

Winder Lawyers

Counsel for the Respondent:

Mr Gary Sundstrom

Solicitors for the Respondent:

Krstina Wooi Solicitor

ORDERS

That the parents have equal shared parental responsibility for the child [X] born in 2005.
That the child live with each of the parents as follows:
(a)Until the child turns 4 years of age:
(i)Week 1 – with the father from 4.30pm Thursday until 6.00pm on Sunday and for the remainder of the week with the mother;
(ii)Week 2 – with the father from 4.30pm Wednesday until 6.00pm on Friday and for the remainder of the week with the mother;
(b)Until the child commences the second term of school in 2011:
(i)Week 1 – with the father from 4.30pm Thursday until 9.00am on Monday and for the remainder of the week with the mother provided that in the event that the father can not ensure that the child is returned to the mother between 8.00am and 9.00am on Monday mornings then he must notify the mother prior to that weekend commencing and arrange for the child to be returned to the mother at 6.30pm on the Sunday evening;
(ii)Week 2 – with the father from 4.30pm Wednesday until 6.00pm on Friday and for the remainder of the week with the mother;
(c)Upon the child commencing the second term of school in 2011:
(i)With the mother from 3.00pm or the end of school on Monday until 9.00am or the commencement of school on the following Monday in each alternate week;
(ii)With the father from 3.00pm or the end of school on Monday until 9.00am or the commencement of school on the following Monday in each intervening week;
(iii)With the mother for the first half of the Christmas School holidays in even numbered years and the second half in odd numbered years;
(iv)With the father for the first half of the Christmas School holidays in odd numbered years and the second half in even numbered years.
The child’s period of living with the parents is suspended from 2.00 pm Christmas Eve until 2.00 pm Boxing Day each year and the child is to spend time with each of the parents as follows:
(a)With the mother from 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years.
(b)With the father from 5.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years.
The child’s period of living with the parent with whom he is living on the child’s birthday be suspended from 3.00pm or the conclusion of school on that day until 6.00pm if on a weekday or school day and from 12 noon to 6.00pm if a weekend day and the child live with the other parent during these times.
If the child is living with the mother on the weekend including Father’s Day the child’s period of living with the mother be suspended from 5.00pm on the day preceding Father’s Day until 5.00pm on Father’s Day and the child live with the father during that time.
If the child is living with the father on the weekend including Mother’s Day the child’s period of living with the father be suspended form 5.00pm on the day preceding Mother’s Day until 5.00pm on Mother’s Day and the child live with the mother during that time.
The child is to communicate by telephone with the parent with whom he is not living on at least two occasions per week implemented by the parent with whom the child is not living telephoning the other parent’s mobile telephone and that parent ensuring that the child is available to speak with the other parent.
Each party is to contact the other as soon as reasonably practicable upon the child being admitted to a hospital or receiving specialist medical attention while the child is living with them.
Each party is at liberty to obtain all relevant medical records and consult the child’s medical practitioners, hospital and/or other health care professionals to obtain any information they require and these orders are sufficient authority for that purpose.
Each party is at liberty to attend the child’s day care, pre-school and school functions and obtain all details from the child’s pre-school and school including reports, school photos and these orders are sufficient authority for that purpose.
Each party is to notify the other of their residential address, landline telephone number and mobile telephone number, within seven days of the date of these orders, and keep the other party advised of any proposed changes to the above details within fourteen (14) days of any proposed changes.
Neither parent shall discuss these orders or the Family Law proceedings in the presence or hearing of the child.
Neither party shall denigrate the other to or in the presence or hearing of the child or allow the child to be in the presence of any other person doing so.
Unless otherwise agreed, changeovers that occur on days when the child attends day care, pre-school or school are to be facilitated by the father, or his nominee who is known to the child, collecting the child from the child’s day care centre, pre-school or school at the commencement of time and return the child to the child’s day care centre, pre-school or school at the conclusion of time with the father and the mother, or her nominee who is known to the child, collecting the child from the child’s day care, pre-school or school at the commencement of time with the mother and return the child to the child’s day care centre, pre-school or school
Unless otherwise agreed between the parties changeovers that occur on non day-care, pre-school days are to be effected at the car park on the corner of [address omitted] by the parents or their nominees who are known to the child.
Notwithstanding any other orders herein, until the child commences school in 2011, the child is to spend up to three block periods of time per year with each parent of no less than seven days and no more than 14 days on each occasion and totalling up to six weeks per annum for the purposes of a holiday away from home for the child with either parent, provided that no less than one months notice of the intention to exercise such block holiday time with the child is given to the other parent and provided that such block periods do not include Christmas Day or the child’s birthday.
During the block periods referred to in the above, the child is to communicate by telephone with the parent whom the child is not holidaying on no less than two occasions per week to be implemented by the parent with whom the child is holidaying telephoning a number advised to them by the other parent prior to the holiday period and ensuring that the child is available to speak with the other parent.
Neither party is to use any form of physical discipline on the child and must ensure that no other person does so.
Unless otherwise agreed to between the parties the child will attend the [E] School when he commences school.
Unless otherwise agreed to between the parties neither party is to change the child’s place of residence to a distance greater than

15 kilometres radius from the [E] Shopping Centre.

NOTATION

The hearing of this matter proceeded on the basis that neither party had any current intention to relocate from the Newcastle area. Both parties are employed in occupations that may see them or their partners transferred at some future date and both parties agreed during the hearing that should that issue arise in the future, notwithstanding order (20), neither party would be precluded from seeking further orders as a result of the application of the principles laid down in Rice v Asplund.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC2346 of 2008

MR BANNING

Applicant

And

MS WYLIE

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of [X] are unable to agree as to his future parenting arrangements. [X] is 3 years and 10 months of age and the son of

Mr Banning the applicant father in these proceedings and Ms Wylie the respondent mother.
[X] currently lives primarily with his mother but lives with his father for 5 nights in every 14. The father would like to see that arrangement changed to an equal shared care arrangement once [X] commences school. Until he commences school the father would like him to spend an extra night with him each fortnight. The mother would prefer the current arrangement to continue.[1] Both parties wish to share equally their parental responsibility for [X].
[1] Both parties amended their position during the hearing.

Background

The parties commenced to live together in November 2001 and separated in January 2007. [X] who was born in 2005 was only 13 months of age at the time of separation. Both parties live in the Newcastle area and neither has any other children to support. The father is a member of the [Defence Force]. The mother is [employed in the Law Enforcement Industry] also based in Newcastle.
The father has re-partnered with Ms B who is [employed in the Education Industry]. They have been together for about 2 years. The mother has also re-partnered to Mr C who is also [employed in the Law Enforcement Industry]. They have been together for about 18 months.
The paternal grandparents Mr B and Ms B have been living with the father since around the time of separation and have played a significant role in the care of [X].
After separation the child lived primarily with the mother and spent regular time with the father although the parties disagree as to the extent of this time. After mediation in August 2007 the parties agreed for the child to live with the father from Thursday afternoons until Sunday evenings each week and with the mother for the other part of the week.
The father brought his application for parenting orders in September 2008 and interim parenting orders were made by consent in December 2008. These orders provided for the child to live with the father from Thursday afternoon to Sunday evening in one week and from Wednesday afternoon to Friday evening in the second week of a fortnight period. The child would live with the mother for the other days in the fortnight.
These orders have generally been complied with, with some variation upon request. The mother complained that the father was not as accommodating as her in relation to any changes.

Issues

The mother argued that the father’s proposal of an equal shared care arrangement for [X] was not in the child’s best interests because of the level of negativity towards her in the father’s household and the inability of the parents to communicate effectively for the ongoing care of [X].
The father agreed that there has been negativity in both households but that at least on his side there has been a positive shift. He argued that the mother’s expressed view of the inability to communicate was strategic in order to improve her chances of maintaining the status quo rather than moving to a shared care arrangement.
Consequently the significant issues to be determined in this matter are:
a)The level of communication between the parties and how that will impact on their ability to maintain the status quo or implement an equal shared care arrangement for the child; and
b)What level of animosity exists between the parents and extended family and what impact if any this has on the willingness and capacity of all those involved to promote a positive and ongoing relationship between both households.
A further issue that was raised at the outset of the hearing was the potential for future relocation by either of the parties given their employment in professions where they could be subject to transfers. At the commencement of the hearing I indicated that there was no evidence before the court of any imminent move or like intention by either parent. Accordingly the issue could not be canvassed in any detail during the hearing but the parties were concerned to ensure that no one was prejudiced in the future should that event arise. I accepted the submission of Mr Sundstrom, which was adopted by Mr Kelly, that a notation should be made so that the parties do not have to face an argument as to Rice v Asplund[2] if the circumstances of relocation are to arise in the future.
[2] (1979) 6 Fam LR

The Evidence

The applicant father relied on his Initiating Application filed on

17 September 2008 along with the following affidavits:
a)his affidavits filed:
i)17 September 2008;
ii)6 July 2009;
b)the affidavit of Ms B filed 6 July 2009; and
c)the affidavit of Ms B filed 6 July 2009.
The mother relied on her response filed on 10 December 2008 and on the following affidavits:
a)her affidavits filed:
i)10 December 2008; and
ii)19 June 2009.
b)the affidavit of Mr C filed 19 June 2009; and
c)the affidavit of Ms W filed 19 June 2009.
The court has also had the benefit of a family report by a Regulation 7 family Consultant, Ms McMahon that was released on 12 June 2009.
Both parties gave evidence and were cross-examined as was the paternal grandmother and the family report writer. All witnesses impressed as honest and forthright in their evidence. Where the evidence differed I found the recollections to be honestly held.
A number of documents produced on subpoena were tendered as well as some aides memoire. I have had regard to all of the evidence in determining this matter.

Legal Principles

Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[3]
[3] section 60CA
The objects of Pt VII are to ensure that the best interests of a child is met by both parents having a meaningful involvement in their child’s life; that the child is protected from physical or psychological harm; that he or she receives adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4]
[4] section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[5] section 61DA
[6] section 61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.

Presumption of Equal Shared Parental Responsibility

Both parties seek an order that they equally share in the parental responsibility of [X]. I am satisfied on the evidence that there is no reason for the presumption not to apply. There is no apprehended domestic violence order and no evidence of violence between the mother and the father. There was a violent incident between the mother and the paternal grandmother to which I shall refer later however this does not preclude the parents from sharing this important part of their parental role.

Consideration of Equal Time or Substantial and Significant Time

Because I have applied the presumption and will make an order for equal shared parental responsibility I am required under the legislation to approach the determination of [X]’s parenting arrangements by firstly considering whether it is in his best interests and reasonably practicable for him to spend equal time with both parents. If I form the view that it is either not in his best interests or reasonably practicable for an equal time arrangement to be implemented I must turn my mind to whether or not it is in his best interests or if it is reasonably practicable for him to spend substantial and significant time with both parents. In determining these issues I will have regard to factors set out in ss.60CC(2) and (3).

The primary considerations: s.60CC(2)

The benefit to the child of having a meaningful relationship with both of the child’s parents

[X] has benefited from having a meaningful relationship with both his parents. Whilst it could be said that the mother has been his primary carer for all of his life the father has spent a significant period of time caring for him both prior to separation and afterwards. He has in doing so had the assistance of his parents. The family report writer expressed some concern as to whether he has played as significant a role as time in it self would suggest. I am satisfied however that he has been a hands-on father and has been caring for [X]. The mother complains that whilst they were together he was not as hands-on as she would have liked. For example she would have preferred opportunities for her own free time such as going to the gym without the father expressing complaint. Whilst this may be so I am not satisfied there is any evidence that would support the view that the father has not been involved in the care of this child.
He has a close and loving relationship with both parents as a result of their significant involvement in his care.
Under either party’s proposal this would continue to happen. The mother’s proposal is a form of shared care although not an equal time arrangement. The current arrangement would continue to ensure that this child spends time with both parents each week. As children get older this requirement for frequency is not as important as they able to spend longer periods away from their primary carer. Generally speaking older children are also more easily able to move between households on a week about arrangement subject of course to the ability of the parents to appropriately implement such an arrangement.
I am satisfied that [X] would benefit by continuing have and develop a meaningful relationship with both parents under either proposal.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

This is one of the fortunate cases to come before the court where neither parent has involved this child in any form of abuse, neglect or violence between the parents. Regrettably the mother and paternal grandmother did expose the child to violence in May 2007 when the mother attended upon the home where the child was with the paternal grandmother. I will deal with this under the heading of violence.
I am satisfied that the child is not at risk of physical harm in either household.
The family report writer expressed concerns as to the possible exposure of the child to a negative view of the mother from the father and members of his extended family. For reasons that I will elaborate on below I am satisfied that despite negative views held by both parents toward each other and by the paternal grandparents toward the mother they have not exposed the child to these views and are not as significant an issue as presented to the family report writer.

I do not consider the child to be at risk of psychological harm in either household.

The additional considerations: s.60CC (3)

In determining this matter I have considered all of the considerations set out in this subsection. In this judgment however I propose to address the more pertinent provisions.

The nature of the relationship of the child with each of the child’s parents

I have already referred to the positive relationships this child has with the parents. I am also satisfied that he has a positive relationship with the mother’s partner Mr C, the father’s partner Ms B and the paternal grandparents. This will continue to occur under either proposal of the parties.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

The break down of this relationship has been coupled with significant negativity between the mother and father as well as the paternal grandparents.
The family report writer, whilst concerned as to negativity in both households, was very concerned to ensure that [X] was not exposed to negativity towards the mother expressed in the father’s household.

Ms McMahon formed her opinion that this was likely after her interviews with the father, his partner and parents. Her position did not shift in cross-examination. By that time Ms McMahon had had the benefit of reading the updating affidavit material and the documents produced under subpoena.
At paragraph 17 of the family report the father is recorded as believing that the mother had “no morals, no ethics and no integrity”. He apparently also said that the mother “lies and cheats” and was very manipulating. He expressed the opinion that the mother was not a good role model for [X]. The father in cross-examination conceded all of the words attributed to him by the report writer. He explained however that during the course of that interview he became focused on the negative aspects of his relationship with the mother rather than his relationship with her as a parent. Whilst it maybe open to the court to be sceptical as to a person’s change of heart I was after observing the father in the witness box impressed that he has moved on significantly since the interviews with Ms McMahon. The father has clearly done a lot of reading and has attended a parenting course. He was sincere, in my view, when he said that whilst he had felt hurt and angry about the break down of his relationship and admitted that there had been difficulties in communicating with the mother he accepted responsibility for his part in those difficulties and also said that he did not hold any more to the views that he expressed to report writer. He also expressed the optimistic opinion that after the litigation he and the mother would be able to improve their ability to communicate.
The report writer observed that the paternal grandparents also held such negative views of the mother. The paternal grandfather was not cross-examined. After observing the paternal grandmother give evidence I was left with the impression that whilst she had strong traditional moral values and was somewhat disapproving of Ms Wylie’s reasons for the break down in the relationship she did not “hate” the mother as Ms McMahon believed.
Ms B and the mother were involved in a very unfortunate physical altercation soon after the separation. Both Ms B and the mother have completely different recollections of this event which no doubt influences their relationship with the other. Despite this however, during the course of the proceedings I formed the view after observing both Ms B and the mother that the level of angst between them is not as high as each have imagined. They both respect each other’s role in the child’s life.
Ms B is obviously partisan and supportive of her son and is more likely to be accepting of his views. She is however supportive of the mother of her grandson. She is respectful of the mother’s parenting role whilst perceiving that she would hold different values. Likewise the mother is supportive of Ms B’s relationship with [X]. The mother gave evidence, which I accept, that when [X] is with her she includes the paternal grandparents in discussion and is always positive about them. One example being that she refers to nanna under the letter ‘N’ when they are talking about the alphabet with [X].
The mother’s view of the father however remains negative. Despite this she has been able to refrain from expressing such negativity in front of the child. There is no evidence that the child has been affected by the negativity in either household. I am satisfied that whilst the mother, father and paternal grandparents have held negative views of the other they have been able to refrain from expressing them to or in front of the child and further, at least in the father’s household, the views have either mellowed or at least matured such that the level of negativity has decreased.
Because of this, and despite the conclusions drawn by the family report writer, I am satisfied that all of the adults would be able to focus on [X]’s needs rather than their own and they will be able to promote a positive and ongoing relationship between the different households.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs

I am satisfied both parents have the capacity to properly and appropriately care for this child as do the grandparents and their new partners. They have been and will continue to meet the day-to-day needs of the child and shield him from any disputes that arise between them.

Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

In May 2007, not long after separation, the mother had arranged for the father to care for the child before he went away on deployment. That afternoon she observed the father drive into the [E] Shopping Centre car park and immediately formed the view that he was attending the tavern to have a drink. She noticed that the child was not in the car. She texted and telephoned the father and her messages where ignored. She went to the father’s home where the child was being cared for by the paternal grandmother. An ugly incident occurred and the child observed a physical altercation between the mother and the paternal grandmother. The mother took the child away. The police were called and a report was entered.[7]
[7] Exhibit F4
The versions of events between the mother and the paternal grandmother are quite different. Ordinarily it would be appropriate for the court to determine where the truth of those disputed facts lie. Because I have formed the view that such a determination would not lead the court to form a different view as to the outcome of these proceedings I have decided not to determine whose version of events is the correct one. Given the highly emotional circumstances both witnesses may have recalled the events inaccurately in any event.
Both the paternal grandmother and the mother regret the way things happened. They clearly still blame each other for it but at the same time accept partial responsibility for what occurred. This was a very unfortunate event which if repeated would have ongoing negative consequences for [X]. Fortunately it was a one off event and I am satisfied it will remain so. For those reasons I do not propose to determine this other than to note this history. Having observed both the mother and paternal grandmother give evidence and express regret for their role in the incident I am satisfied, given there has been no further incident of like kind, that this child will not be exposed to ongoing incidents of this nature.

Consideration of whether a shared care arrangement would be in this child’s best interests or reasonably practicable

The proposals of both parties amount to a shared care arrangement however the father seeks that when the child commences school his care be shared equally between the parties.
The Act provides[8] for a consideration of a number of factors in determining whether it is reasonably practicable for an equal time arrangement to work. These factors are:
a)How far apart the parents live from each other; and
b)The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)The parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)The impact that an arrangement of that kind would have on the child; and
e)Such other matters as the court considers relevant.
[8] section 65DAA(5)
The parties currently live close enough for a shared care arrangement to work. The mother does intend to move in the future however during the hearing the parties were able to agree that such a move would not be so far as to preclude easy movement between the households subject to any future issue of a work transfer that I have already referred to.
For some time now the child has been living primarily with the mother and living with the father for 5 days out of every 14 although not in a single block period. Despite significant issues in relation to communication to which I will refer below, the parties have managed to ensure that the arrangement works for the benefit of [X].
The significant issue is whether there is an appropriate level of communication between the parties to ensure that they will be able to address issues as and when they arise. The mother says they haven’t been able to do this and she sees no possibility of improvement in the future. The father says that whilst there has been some difficulty in the past there have also been many incidents of effective communication and that he is optimistic that once the litigation is concluded they will be able to resolve any differences that may arise.
The parties communicate primarily by text message and sometimes by e-mail. Whilst a modern and effective medium for communication it could not be said to be the optimum way for parents to ‘talk’ to each other about their child and his needs. Ideally the parents should have a level of comfort with each other to enable them to sit down at a table, maybe over a cup of tea, to address the many issues or concerns that arise as children get older. That is not to say that texting each other is inappropriate. For many small issues that may be the best way to avoid mix ups from misunderstanding phone communication as it will afford a party the opportunity to re-read a text. As the only medium for communication however it is fraught with potential problems. E-mails provide a more thorough opportunity to express oneself than texting especially when details need to be explained but nothing can replace effective oral communication especially face to face. For the purpose of co-parenting the written word is best used to assist and support oral communication.
Consistent with their argued positions the mother holds no hope of improvement in their ability to communicate whereas the father believes they will both move on and be able to talk to each other after these proceedings.
Large bundles of documents were tendered[9] that were said to be copies or transcripts of text messages and e-mails going between the parties. The text messages and e-mails provide significant examples of how the parties have communicated in relation to [X]. The mother submitted that the court should form the view that these messages would on balance show that the parties are unable to communicate whereas the father submitted that on balance the court will form the view that they are able to communicate.
[9] Exhibits F1, F2, F3, M1 and M2
I do not propose to go through these messages one by one. There are thousands of messages. I have read them all. Clearly there were days when these parties were rude to each other, obstinate in their position and were not effective initially in their ability to find compromise when necessary. Having said that however when one looks at the totality of the messages some of which occurred on the same day where they did not initially communicate effectively one can find many messages where they have been able to make proper and appropriate arrangements for the care of [X]. Indeed there is no evidence of his care ever being compromised. When I weigh all the texts and e-mails I am satisfied they are able to effectively communicate.
When I asked the mother a number of questions as to whether they had been able to communicate effectively about significant day-to-day care matters such as the child’s sleeping patterns and medication she admitted that they had been able to communicate about these matters and where they had initially disagreed they were able to make appropriate compromises. Despite this concession the mother honestly and sincerely believes that they are unable to communicate effectively. This belief has no doubt developed because of the way both parents have expressed themselves from time to time and because they have both held to their positions rather than find a quick compromise at times. In the end though they have always been able to place [X]’s best interests first and make compromises, whilst no doubt still disagreeing with each other. There is no evidence that [X] has been adversely affected by the parents’ disputes on some issues. There are also many positive examples of effective communication between them and providing each other with assistance in the care of the child.
I am satisfied on balance that their communication is effective.
I make that finding notwithstanding that I have indicated that texts and e-mails are not the optimum method of communication. The father is probably over optimistic in his prediction the parties will be able to communicate more effectively and without such a reliance on texts after this litigation. The mother is unlikely to feel comfortable in any other form of communication for some time. Despite this and although the parties may at times be less than respectful in their written communication I am satisfied they are able to communicate effectively to continue to implement the current arrangement.
The father’s proposal would see the child spend an extra two days with him with a corresponding reduction in the time spent with the mother. Having found the parties can effectively communicate for the purposes of maintaining the current arrangement I can see no reason why they would not be able to do so if an equal shared care arrangement was implemented. The issues they would have to communicate about now would be the same in a week about arrangement although issues arising from the child’s attendance at school would be more common. Being able to communicate about the day-to-day issues that arise now is also indicative of the parents’ ability to continue doing so in the future even about the school issues that will arise.
There is no evidence that there has been any negative impact on the child under the current arrangement or any evidence to suggest that an equal time arrangement would lead to a negative impact once he was settled into school.
The parties have had a different outlook on the issue of religion. The mother was concerned that the child not be baptised without consultation with her and does not want the child to be forced to adopt the Catholic faith held by the paternal grandparents and the father unless he chooses to when he is older. She has no objection to him receiving instruction but does not want it to go beyond that at this stage. The father understands this and will not have him baptised. I am satisfied that they were able to reach a compromise on this issue notwithstanding some initial distrust. The issue of physical discipline was another issue where they appeared to have had a different approach but were able to reach an agreement. These issues are important because any form of shared care, but particularly equal shared care, is fraught with difficulties if the parties are unable to make compromises.[10]
[10] See T v N (2004) 31 Fam LR 281

Conclusion

Ms McMahon concluded that [X] appeared to have attachments to a number of significant adults in his life primarily his mother, his father and his paternal grandmother.[11] Ms McMahon noted that his current living arrangements were almost an equal time scenario with him spending five nights with his father and nine nights with his mother each fortnight. Ms McMahon opined that for such arrangement to operate in a child’s best interests especially for a child as young as [X] the parents must have an ability to cooperate and be respectful in their parenting relationship. She formed the view that that was not the case for [X] but after considering the evidence I have arrived at a different conclusion.
[11] Paragraph 42
At paragraph 48 of the report, Ms McMahon concluded that it wasn’t in [X]’s best interests to spend any more time with his father. Her primary basis for this was that if he did he would be exposed to even more negativity about his mother from his father, his father’s partner and grandparents than he currently does. I do not accept that this will be the case. For the reasons that I have set out above I have respectfully come to a different conclusion than the report writer.
Save for the young age of the child I am satisfied that it will be in the his best interests to live in an equal shared care arrangement with his parents and that it will be reasonably practicable for him to do so. The father’s proposal was to move to a week about arrangement once the child commences school. Starting school sees a number of changes for children, especially in their routine. I am of the view that the child should have an opportunity to adjust to his new school environment prior to any change in his home arrangements. For that reason I propose to order that the shared care arrangement commence at the beginning of the second term of his 2011 school year.
The father would like to see the child spend an extra night a fortnight with him until the implementation of the equal shared care arrangement. The mother is opposed to the extra night for two reasons. Firstly she does not believe it’s in the child’s best interests to spend an extra night with the father but secondly if he was to she is concerned about having him returned too early the next morning because of the father’s work commitments.
I am of the view that it would assist the child and the parents move towards the equal shared care arrangement if the child’s time with the father was increased incrementally. This was partly the basis of the father’s proposal. The father was also frustrated in having to return the child to the mother on Sunday evenings, which effectively compromised a whole weekend experience for him and the child.
The mother’s concern about an early return is a valid one however I am satisfied that as between the father and his partner or with the assistance of his parents it will not be necessary for [X] to be delivered any earlier than 8.00am to the mother. I am satisfied that the child would benefit by spending Sunday evenings with this father but to assist in the transition to the increased time that should commence after his fourth birthday which is this December.
I propose however to make an order that would provide for him to be returned to the mother between 8.00am and 9.00am on Monday mornings but in the event that the father cannot ensure that this happens then he must notify the mother prior to the weekend commencing and arrange for the child to be returned to the mother at 6.30pm on the Sunday evenings.

For these reasons I make the orders set out at the beginning of this judgment.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Deputy Associate: Louise Rees

Date: 8 October 2009