Barclay and Brenan - [2010] FMCAfam 1203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARCLAY & BRENAN

[2010] FMCAfam 1203

FAMILY LAW – Parenting orders – overseas travel – history of parental mistrust – variation to orders made in 2007.

Family Law Act 1975 (Cth) ss.106A, 65Y, 65DAA, 60CA, 60CC

Rice & Asplund (1979) FLC 90-725

Applicant:

MR BARCLAY

Respondent:

MS BRENAN

File Number:

MLC 4047 of 2007

Judgment of:

Hartnett FM

Hearing dates:

23 & 24 September; 27 October 2010

Date of Last Submission:

27 October 2010

Delivered at:

Melbourne

Delivered on:

12 November 2010

REPRESENTATION

Counsel for the Applicant:

Dr Ingleby

Solicitors for the Applicant:

Kennedy Partners

Counsel for the Respondent:

Mr Ramsey

Solicitors for the Respondent:

Jane Baldwin Solicitor

THE COURT ORDERS THAT:

All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility of the child [X] born [in] 2003 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)In each second week during the school term unless the father has not seen the child in the second half of the school term and long Christmas school holidays in which case it shall commence in the first week from 3.30pm or the conclusion of school Thursday until 9.00am or the commencing of school Tuesday and each alternate week thereafter;
(b)During the school term holidays (but not the Christmas holidays) as follows:
(i)from 5.30pm on the middle Saturday until 5.30pm on the last Saturday of such holidays in terms two and three and in the term one school holidays from 10.00am on the first Saturday until 5.30pm on the middle Saturday in odd numbered years and otherwise in accordance with this sub-paragraph in even numbered years;
(c)During the long Christmas school holidays as follows:
(i)In the long Christmas vacation that commences in 2010:
1.   from 3.30pm or the conclusion of school on the last day of the school term until 4.00pm on 25 December 2010;
2.   from 4.00pm on 31 December 2010, until 4.00pm on 14 January 2011;
(ii)In the long Christmas vacation which commences in 2011 and in each such vacation thereafter:
1.   in the first half of the long Christmas vacation which commence in odd numbered years, for a total of 50% of the nights which make up the school holiday period;
2.   for the second half of the long Christmas vacation which commence in even numbered years (save that in the 2012/2013 long Christmas vacation the child can spend time with the father in the second half instead of the first half should the father wish to travel overseas with [X]) for a total of 50% of the nights which make up the long Christmas vacation on the basis that the child will return to the mother at 8.00pm two days prior to the commencement of school;
(d)For the purposes of Christmas school holidays definition and for those occurring from 2011 onwards:
(i)the long Christmas vacation commences at 10.00am on the day immediately following the last day of school;
(ii)the long Christmas vacation concludes at 8.00pm two days prior to the commencement of school;
(e)On Christmas Day commencing in 2011, as follows:
(i)from 4.00pm on 24 December until 4.00pm Christmas Day when Christmas Day falls in even numbered years;
(ii)from 4.00pm on 25 December until 4.00pm on 26 December when Christmas Day falls in odd numbered years; and
(iii)the father’s time with the child will be suspended from 4.00pm Christmas Eve to 4.00pm Christmas in odd numbered years, and from 4.00pm Christmas Day to 4.00pm Boxing Day in even numbered years;
(f)On the child’s birthday commencing in 2011:
(i)
from 4.00pm on [date omitted] until 4.00pm on

[date omitted], when the child’s birthday falls in odd numbered years;
(ii)from 4.00pm on [date omitted]until 4.00pm on [date omitted] when the child’s birthday falls in even numbered years;
(g)In the event that Father’s Day falls on a day when the child is not normally with the father, then the father shall have the child from 5.00pm on Father’s Day Eve until 9.00am or the commencement of school on Monday;
(h)In the event that Mother’s Day falls on a day when the child is normally with the father, then the father’s time with the child will suspend from 5.00pm on Mother’s Day Eve until 9.00am or the commencement of school on Monday;
(i)At such other times as may be agreed between the parties from time to time.
The father or if he is unable to, then his wife Ms B, and the mother or if she is unable to, her husband Mr M, shall collect the child from and deliver him to school at any given time.
All changeovers which do not occur at the child’s school will occur at McDonalds Family Restaurant at [suburb omitted] between the mother and the father and in the event that the father is not available to attend the changeover at McDonalds to collect the child from the mother, then the child will remain with the mother until such time as the father is available to collect the child, unless otherwise agreed.
Each of the mother and father are at liberty to remove the child from the Commonwealth of Australia for the purposes of a holiday:
(a)in 2011 and 2012 for one occasion of one week’s duration and at a time being a time in which the child would be in their care pursuant to these orders and during school holidays; and
(b)commencing January 2013 and always being in the second half of the long Christmas school holidays for the period during which the child would be in the care of that parent.
For the purposes of overseas travel each of the mother and father in December 2010 do all things and acts necessary to obtain an Australian passport for the child. The costs of same to be paid by the parties equally and the mother to retain possession of the passport but to provide same to the father at least fourteen days before any intended departure by him of the child from the Commonwealth of Australia. The father to return the passport to the mother’s possession within seven days of the child’s return to the Commonwealth of Australia.
In respect of overseas travel each party shall provide the other with fourteen days written notice setting out the following information:
(a)dates of travel;
(b)all flight arrangements;
(c)the general itinerary of where the child will be staying overseas; and
(d)the contact details for all accommodation overseas.
Each of the mother and the father is at liberty to telephone the child whilst the child is in the care of the other and at all reasonable times. Such calls to be of no more than ten minutes duration, unless the call is for a particular purpose which requires an extended time. Each of the mother and father’s spouses are permitted to talk to the child during this time whilst not themselves initiating the call.
Both parties do all acts and things as follows:
(a)keep each other informed of their respective address and telephone numbers;
(b)keep each other advised of any medical issues involving the child and as soon as practicable notify the other in relation to any illness, injury or accident sustained by the child whilst in their respective care, serious enough to warrant medical attention;
(c)keep each other informed as to any educational issues involving the child including the authorisations necessary for the school to provide both parents with copies of notices, reports, parent/teacher interviews. Nothing in these orders will prevent either party from attending school occasions and events normally attended by the parent of a child.
Each party be and is hereby restrained by injunction from denigrating the other or the partners or the family thereof in the presence and/or hearing of the child.
For a further twelve month period only the parties operate a communication book for the purposes of keeping the other informed of welfare issues involving the child, with such communication book to accompany the child at changeover.
The father to pay the $800 fee of Dr N for the addendum requested solely by him. The further costs of attendance of Dr N are fixed in the sum of $1,196 and to be paid equally by the parties within fourteen days hereof.
Upon the expiration of the appeal period all documents produced on subpoena be returned to the person or institution providing the same.
All applications are otherwise dismissed and the matter removed from the list of cases awaiting determination.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4047 of 2007

MR BARCLAY

Applicant

And

MS BRENAN

Respondent

REASONS FOR JUDGMENT

The proceedings commenced on the father’s application filed

19 January 2010. This application was amended subsequently by the father and on two occasions and it is the orders set out in the amended application filed 13 September 2010 which ultimately he seeks. He relies upon the two affidavits deposed to by him and filed

13 September 2010. He was cross-examined in the proceedings. The father further relied upon the affidavits of his mother Ms G filed 13 September 2010 and his wife Ms B filed 13 September 2010. Neither of those witnessed were required for cross-examination by the mother, the paternal grandmother residing in England.
The mother relied upon affidavits sworn by her on the 25 February 2010, 24 May 2010 and 13 September 2010. In addition she relied upon an affidavit affirmed by her husband Mr M on the

24 May 2010.
A report was written by Dr N and introduced into evidence. Dr N is a clinical psychologist. A second document compiled by her was also introduced into evidence.
Statements of fact in those reasons are to be taken as findings of fact on the balance of probabilities. Both parties sought change to the orders but of varying degree. To vary final parenting orders requires the court to be satisfied that there is a changed circumstance or new factor arising to justify such a serious step. I accept that both parties sought to change the existing orders to better reflect the needs of [X] at this stage in his life and find the rule in Rice & Asplund (1979) FLC 90-725 to not apply. The court does discharge the earlier orders to take into account matters such as overseas travel given [X]’s increased age and to give effect to the recommendation of Dr N of a block period of time which was ultimately adopted by the parties. Given the parental conflict such a regime reduces [X]’s anxiety and promotes his best interests.
The father is aged thirty-nine and the mother forty-three years. Since their separation in January 2006 after a cohabitation period of slightly less than three years, and when their son was just two years of age, each of the parties have married. Both marriages followed the making by consent of final parenting orders between the parties and an Independent Children’s Lawyer in the Magellan List of the Family Court of Australia on 24 August 2007. The father married Ms B [in] 2008. She and the mother in these proceedings have a poor relationship. The mother married Mr M in 2010. Mr M has a civil but very limited relationship with the father in these proceedings which is reciprocated.
The orders of August 2007 provide for [X] to spend time with his father during school terms in five nights out of fourteen but being broken up as three continuous nights and two single nights in a fortnight. Current orders provide that changeovers other than at school occur at McDonalds in [suburb omitted].
The father issued proceedings in January this year to resolve issues then in dispute between the parties being issues associated with changeovers, and the definition of school holiday periods; an issue with school-related excursions and extracurricular activities; and overseas travel for the child. At the time of the father issuing proceedings [X] was shortly to commence primary school at [H] and the father was shortly to commence work at a location less than ten minutes drive from the school. In the course of the proceedings and on 24 September 2010, the Court made by consent an order to partially deal with the issue of changeover. That order is to be repeated in the orders I now make.
Dr N, clinical psychologist, prepared a report dated 31 May 2010. She was cross-examined by each of the parties. Introduced into evidence by the father was an affidavit affirmed by Dr N on 10 September 2010 annexing what was described as an addendum report dated 9 October 2010. That addendum was not based on any further interviews with the parties and/or child but rather answered three questions outlined in a letter to her from the father’s lawyers. In that addendum Dr N expressed the view that [X]’s needs would be best met through him spending time with his parents in block periods. The arrangement under the current orders whereby [X] moves between his parents’ households in a more interrupted pattern was described by Dr N to expose the child to the potential of frequent parental conflict including open overt conflict (as had been demonstrated by the parties’ recent history) and also to expose him to the hostility and acrimonious feelings between his parents. Dr N noted that any change would be stressful for [X]. The evidence supported these remarks and indeed the parties ultimately agreed that a block period may better promote [X]’s best interests.
The inclusion in Dr N’s addendum of the following paragraph propelled the father to further amend his application from what he was by then seeking, namely a week about arrangement, to seek that [X] reside with him. If was as follows:
In many respects, strong arguments could be made for [X] to spend most of his time with one parent or the other as this might be expected to reduce his psychological burden. However,

Ms Brenan’s presentation, her apparent difficulty facilitating [X]’s relationship with his father and stepmother, and her apparent inclination to continue believing that [X] is at risk of sexual abuse from his father would suggest that, on balance, [X] may be better off in his father’s primary care. I consider that

Ms Brenan’s suspicions, negative beliefs and difficulty appreciating [X]’s relationship with his father and stepmother contribute significantly to [X]’s difficulty integrating his worlds. I also consider that Mr Barclay is better able to facilitate [X]’s relationship with his mother than Ms Brenan is able to facilitate [X]’s relationship with his father.
The views expressed in this passage were not supported by the whole of the evidence before the court. The manner in which Dr N formed these views was not persuasive and her conclusions lacked a proper evidentiary basis. This passage also sat at odds with the contents of her report prepared on interviewing all parties and with the evidence given by her at trial that her recommendation was that [X] remain in the primary care of his mother. I shall return to her evidence later in these reasons.
The earlier proceedings between the parties included a notification made to the Department of Human Services (“DHS”) about [X] possibly being sexually abused (September 2006). Various professionals were involved with the parties and child at that time and [X]’s time with his father was supervised for a period. The proceedings concluded in the making of the August 2007 orders by consent, providing for [X] to spend unsupervised and overnight time with his father. Thereafter and before the institution of these proceedings the parties have attended upon Ms D as envisaged in those orders and otherwise attempted mediation to resolve parenting issues between them. This has not been successful. The parties do not trust each other nor like each other. The mother also believes that Ms B feels hatred for her resultant from the earlier proceedings and alleges that Ms B has behaved toward her inappropriately at times. They have minimised their interchange with each other which these orders will continue and this has assisted [X] who loves his mother and who has a positive and warm relationship with his step-mother.
In the course of the proceedings the parties entered into consent orders on 2 March 2010 to effect changeovers at school and where possible I shall order a continuation of that arrangement.

Overseas travel

The father sought orders in relation to overseas travel for [X]. He sought:
13. That the parties forthwith do all acts and things and sign all documents necessary to have an Australian Passport issued in the child’s name.
14. That the father be responsible for the costs associated with the issuing of an Australian passport in the child’s name and also for keeping the passport current and the passport shall be retained by the father. Whenever the mother proposes to travel overseas with the child, the father shall make the child’s passport available to her not less than fourteen days prior to her departure date and the mother shall return the child’s passport to the father within seven days of returning to Melbourne with the child.
15. That either party be permitted to travel overseas with the child during the time that the child would ordinarily spend time with them and to facilitate such overseas travel, the party proposing to travel overseas with the child, shall provide to the other party, with not less than 30 days written notice of their intention to travel, copies of the child’s return airfares, itinerary and contact telephone number not less than fourteen days prior to the departure date.
The father has family in the United Kingdom. He is very close to his mother (who has remarried following the death of her husband) and his three brothers. He would like to take [X] overseas to visit them. The mother is not opposed to overseas travel of itself but believes that [X] is a sensitive boy who is anxious and worried by change and not yet ready to have extended time away from her. She proposes therefore that overseas travel occur when [X] is older and more able to cope with it and that increased holiday time be introduced gradually. [X] is presently six years of age.
Neither party raise any concern that either of them would not return [X] to the Commonwealth of Australia. The father has been mindful of his obligations pursuant to s.65Y of the Family Law Act 1975 (Cth) (“the Act”). Absent the consent of the mother at the present time he has not sought to remove the child from Australia without court order.
[X] has a good relationship with his extended family and has a loving and close relationship with each of his parents and their spouses. Both parties agree that overseas travel for [X] would be desirable. Dr N also found nothing to suggest that such a trip would not be a positive experience for [X]. The dispute is only as to when such a trip should be embarked upon. The mother’s case is that this particular child cannot handle a period approaching three weeks away from her at this stage in his life regardless of where that time might be spent.
The dispute is not one of adequate care of the child by either parent whilst away nor the security of the relationship of the child with either parent. It is a discrete issue of progressing the child’s time away from his primary caregiver to include overseas travel increased in length. It is really a question of how quickly this can occur. The mother’s evidence is that the child’s needs are best met by a gradual approach and by time passing to enable him to mature. The father has a differing view. It is important for [X] to spend time in a country which is an important part of his heritage, it being the place of birth and growing up of his father. When will that importance weigh heavily? When might [X] be able to enjoy and benefit from it?

The father’s evidence is that at present [X] would embrace overseas travel with great excitement and that he would cope very well. His evidence further in support of his application is:
48.7 I have not returned to the United Kingdom since the mother, [X] and I travelled there in 2004. I acknowledge that the journey is a long one, however, [X] is resilient. He has travelled to Queensland with my wife and I by plane and he has been on a six hour car ride with us to [omitted] for holidays and he has not been distressed at all during either of these journeys. I am sure that [X] will be very excited by the prospect of visiting the United Kingdom.
48.8 My wife’s sister [name omitted] and brother-in-law currently live in Dubai and it maybe that we stop over to visit them on the way home to break up the trip.
48.9 [X] often talks to my mother about England and we often discuss the time and weather differences. Some of my relatives will not have the ability to travel to Australia at all and under the mother’s proposal, [X] will not then have the benefit of meeting his relatives until he is old enough to decide to travel on his own accord. I believe that travelling overseas will provide [X] (sic) wonderful adventures and also an opportunity to get to know his extended family in the United Kingdom. (affidavit of the father sworn 13 September 2010)
The mother’s evidence as to overseas travel for [X] at this age is that he is a child who does not cope easily with changes in routine. To some extent this is supported by Dr N. She does not believe that [X] would cope with spending a period in the vicinity of three weeks away from her, either in Melbourne or overseas. She says in paragraph 49(ii) of her affidavit sworn 24 May 2010
… I do not believe that [X] could cope with 18 nights at home with his father, let alone overseas. [X] is a child who does not cope with change of routines. The idea of strange people, strange countries, strange rooms, strange beds, strange food, no familiar environments at all, aeroplane flights, hotel rooms, jet lag, adjustments and being cared for by people that he does not know is, and the separation from me and from his familiar surroundings whether at my house or the Father’s house, and the strain of the journey, are all things which [X] would find overpoweringly stressful.
The mother’s evidence as to overseas travel goes to what is consistent with [X]’s welfare as I find it. The mother’s evidence that [X] would find the separation from her stressful and the journey intolerable (paragraph 47 of her affidavit sworn 25 February 2010) I accept. I further accept that she knows him well and that it is in his best interests to not travel before, as his mother says, he has “an understanding of exactly how long 3 weeks is. How long he wouldn’t be in his familiar surroundings”. The orders will provide however that such an extended trip as proposed by the father can occur when [X] is aged ten years and in the interim [X] can travel overseas but on a much more limited basis. For the moment, [X]’s knowledge of his heritage can continue to be gleaned from his father’s account; from family members visiting Australia; and the use of technology, all of which are part of his life now. The father’s mother did come to Australia in September 2009 but the father failed to tell the mother beforehand of his mother’s trip. This was another example of an inability to communicate with the mother which went adversely to [X]’s welfare. It was also unfortunate because the mother has promoted [X]’s contact with the paternal family and would have been willing to further promote that contact during that trip were she forewarned.

Variation of orders

I accept the mother’s evidence that since the making of the orders and in 2008 particularly the father made persistent and unrelenting requests of her to vary the orders to which they had just agreed. His refusal mostly to speak to her directly made his conduct all the more exhausting for the mother and distressing for the child. No rational dialogue could occur between the parties.
The father’s refusal to discuss matters with the mother that go directly to [X]’s welfare has not advanced the best interests of the child. His use of the communication book as a forum for discussion of matters which he wishes to put in place is a misunderstanding of the purpose of such a book.
The mother ceased work in 2008 because the then child care arrangements were not a happy experience for [X] and she remained at home to care for [X]. At that time [X] was not ready to make the progression from kindergarten to school as were his peers. The kindergarten teacher’s assessment identified difficulties in [X]’s social and emotional development at that time (see mother’s affidavit paragraph 30 sworn 13 September 2010). I accept that one of the factors which have assisted [X] develop to the point he has at this age and despite his parents’ conflict is the mother ceasing work in October to be more available to him. I accept that the father has a meaningful relationship with [X] in large part because the mother facilitates it. She speaks positively of the father to the child. I accept the mother’s evidence that she observes difficulties in [X]’s behaviour from time to time including anxiety but that the father will not acknowledge [X] has any anxiety even when he has in the past noticed unsettled behaviours. The father’s evidence which I reject is that it is the mother who causes [X] to be anxious. His evidence was further that he sees separation anxiety when the child leaves his mother on occasion.
The mother’s evidence includes the following:
27. There is no openness in the communication between the Father and me in relation to most things. There is often a level of secrecy or failure to fully disclose on the part of the Father. He did not tell me when his mother was here. He did not tell me when he took [X] to Queensland, he did not tell me he was taking [X] to swimming lessons, whereas I do tell the Father if we are going away and I did tell him when we went to Sydney. He does not tell me where he is holidaying with [X]. The Father says he has flexible work hours. There have been occasions where [X] has told that his father has collected him from school and taken him back to work with him. It is as though the Father has a desire to provide me with as little information on anything as possible.
[X] also expresses a need to hide things from his father. If things occur in my household which he thinks his father will not be happy about, he becomes anxious. Before changeovers, if [X] is eating a lolly he often becomes very anxious and has to eat the lolly very quickly or spit it out and make sure that his Father does not know that he is eating a lolly. [X] will say to me “don’t tell daddy I have a lolly”. If we arrive at change-over before the Father and [X] had a drink, he would drink it really fast in case his father had found out that it was Coke.
There have been situations where [X] has wanted me to convey information to his Father because he didn’t want to. The Father has never allowed [X] to contact me at times that he stays with the Father. There have been examples such as in May 2008, [X] asked me to raise with his Father the fact that he needed a night light, in June 2009, [X] asked me if I could tell his Father that he didn’t like being in a room by himself. When [X] was placed in the position of having to do so, he was really quite distressed by the experience.
During a trip to Sydney during the 2010 Easter term break holidays, I sent the Father a text message to advise that [X] would be in Sydney and that the Father would need to call [X] on my mobile if he wished to speak to him. [X] is allowed to call his father at any time. [X] did call his father early one morning when we went to the Channel 7 studios to find out from the father how to meet David Koch.
There have been occasions where [X] has called the Father and left a message and the Father has not returned [X]’s calls, and [X] went to bed asking why the Father had not called him back.
On the 2 February 2010, [X] called the Father to ask him if he had seen [X]’s Goofy t-shirt glow in the dark the previous night. The Father did not call [X] back that evening but sent me an SMS the following morning which said “can you let [X] know that I saw this t-shirt glow last night thanks”.
On the 11 September 2010, [X] wanted to call his father to talk about the school fete and I had absolutely no problem with that, and [X] and had a discussion with his father about it.” (paragraph 26 of the mother’s affidavit filed on 13 September 2010)
Any shared care regime between the parents in relation to [X] would result in an escalation of anxiety in the child. His parents’ lack of agreement in relation to every aspect of his care, including what extra curricular activities he enrols in which will become even more a feature of his life, would undermine the child’s stability in his mother’s home and his sense of security in her ongoing primary care. The father’s assertion that the mother is not fully supportive of [X]’s relationship with him is not made out on the evidence. Since the making of the orders he has very rarely missed out on any time spent with [X]. That the mother does not agree with his proposals in relation to the care of [X] is not conclusive evidence that she fails to support their relationship. Rather she is motivated by what she perceives to be the child’s best interests.
I accept the mother’s evidence as to what would promote [X]’s best interests near the end of a school holiday period. That evidence is
... I also believe that it would be extremely beneficial for [X] if he could be returned to me the Saturday before school starts to enable him to settle and prepare for school emotionally. [X] is the type of child who likes to come home and check everything is in order. If this can be done prior to school starting, it would mean that [X] could focus on school. Certain things have to happen prior to each school year commencing that physically cannot be done without [X] being in attendance. Shopping for new items for school is a way to help [X] prepare and become excited about the new school year.
It is really just a matter of practicality. It is not a matter of a division of [X]’s time absolutely equally between the parents so as to satisfy them. It is a question of what promotes [X]’s best interests.

Dr N’s evidence

[X] impressed as a very chatty confident boy when interviewed by

Dr N. In all his discussions he portrayed each parent and stepparent as loving and fun to be with. In [X]’s discussion there were no themes of him being anxious or apprehensive about his time with his father. In his behaviour with both his parents and stepparents he showed all the hallmarks of a close, intimate, loving and trusting relationship. Dr N noted that the mother spoke positively to [X] about his father’s home.
Dr N concluded in her report that the current arrangements do not suit [X] and that a longer block period each fortnight such as Wednesday or Thursday after school to Monday morning would provide a better balance for [X] so that he can spend meaningful time with each parent and minimise the psychological and emotional changes as he swaps between the parents’ households in circumstances where the parents remain in high conflict with each other. She recommended as restated by her in her evidence that that period could be nine out of fourteen nights with the mother and five out of fourteen nights with the father. Dr N however also added the following:
“…the biggest risk to [X] remains Ms Brenan’s negative beliefs and continuing suspicions about Mr Barclay. Ms Brenan seems too ready to make attributions that [X] has been sexually abused. I would emphasise that all of the anxious behaviours in [X] described by Ms Brenan could be explained by [X]’s exposure to the tensions and conflicts between his parents.”
Dr N’s criticism of the mother was that she had negative beliefs of the father and that they would provide a negative influence on the child to only say negative things of his father and time spent with him. In essence, that she forced the child to have two different realities so that he had to compartmentalize his life. But the evidence was otherwise save that the child knows each of his parents dislike the other and that his mother and stepmother dislike the other. And in all of this there is the primary issue as to whether the mother in fact harbours such negative beliefs and continuing suspicions.
The mother made no allegation in these proceedings that [X] may have been sexually abused by anyone. The subject was raised by Dr N and a direct question asked by her of the mother. Dr N asked the mother “have you got any concerns about the sexual stuff?” The mother responded with two episodes which she thought ‘odd’. Dr N said the mother jumped to a conclusion straight away that the child’s behaviour was sexual because she gave the examples in response to being questioned as to sexual matters. That was, she made a link in her mind that was not valid because the earlier investigations showed the allegations to be not resultant from sexual abuse. The mother however acted appropriately and protectively in the earlier proceedings according to the DHS and Ms C the professional involved. Ms C said “I think there is a serious concern that the father may have inadvertently exposed [X] to sexual abuse”. When the matter was resolved the father proceeded to have three years of time spent with [X] in accordance with the orders agreed between the parties and which included five nights in each fourteen.
I accept the mother’s evidence that she does not believe the child is at risk of being sexually abused by his father nor has she suggested or inferred to Dr N that the father has sexually abused the child. The evidence is that the mother has done many things to facilitate and promote the child’s relationship with his father. She has provided the father with information as to school and kindergarten functions, medical and dental appointments and has encouraged [X] to speak with his father by telephone. What she has not done is capitulate to each and every of the husband’s request for change albeit she should have on occasion, as to peripheral matters, and acted inflexibly. But I find such actions resulted not because of a lack of support of [X]’s relationship with his father. She understands the importance of [X]’s father in his life and acknowledges the child’s love for his father. She promotes the relationship. It is the father’s hostility toward the mother which jeopardizes the child’s wellbeing and which is one of the factors which weighs heavily against a shared care regime.
Dr N considered that [X]’s desire to buy his mother underwear for mother’s day and his father allowing him to do so as reported to her by the mother was an example of the mother remaining suspicious of the father as a perpetrator of sexual abuse of the child. As was the instance of the mother reporting her concern that [X] has recently put a toothbrush up his anus. The mother said to Dr N “to me that’s odd”. The mother was not explicit about her inferences about this behaviour, indeed she said nothing else other than [X] told her he did so because his anus was itchy. Dr N noted this behaviour was not as uncommon as might otherwise be thought in [X]’s age group nor was it generally indicative that a child had been sexually abused. However the mother was reasonably describing this second episode and to a lesser extent the first as odd behaviour and it could be sexual behaviour or not depending on the surrounding circumstances and a child’s motivation. Dr N felt because of what had gone before in [X]’s life and the outcome of those investigations meant that for him it was not sexual behaviour. That was an unreliable conclusion as to the interpretation of a behaviour three years later. Importantly however the mother had not had protective concerns about her son and his engaging in this behaviour. She let it pass and simply thought it odd to be mentioned only in response to a question without alleging any abuse of the child. The father did not think the behaviour odd. Moreover his evidence was that he did not believe it reasonable that the mother was concerned (previously) about [X] sticking his finger into a dog’s anus because of his belief that children stick their fingers into holes, into body parts and that such behaviour is not sexual. He thus concluded that the mother was over sexualising [X]’s behaviour. His conclusion that the mother’s concern was not reasonable is difficult to fathom. Her concern was an awareness and a questioning of the cause of the behaviour. This evidence again points to the gulf between the parties in parenting styles, beliefs as to what is accepted behaviour by a child and responses to such behaviour. There is no common view as to how to deal with their different interpretations.
The father should pay the $800 fee of Dr N for the addendum requested solely by him. The costs of attendance of this witness fixed in the sum of $1,196 should be borne equally by the parties who both cross-examined her and I shall so order.

Conclusion

The court is satisfied that the presumption of equal shared parental responsibility for the child applies and has not been rebutted (s.61DA(4)) albeit there is a concerning level of inability to communicate between the parties.
In carrying out its mandatory obligation pursuant to s.65DAA of the Act the court has concluded that given the geographical residential proximity of the parties and the child’s school and the father’s employment, that in travel terms it is reasonably practicable for the child to spend equal time with each of his parents. However it is not reasonably practicable given the hostility in the parents’ relationship and the endless conflict between them including over trivial matters with excessive time spent dealing with that conflict often without resolution. This in turn has a devastating impact on their son (s.65DAA(5)). Further the court considers it would not be in [X]’s best interests for him to spend equal time with each of his parents for the same reasons and for those given elsewhere in this judgment.
The court then turns to s.65DAA(2) of the Act and with the parents consent effectively (in that each of their proposals makes such provision) considers that [X] spending substantial and significant time with his father is in the best interests of the child and that it is also reasonably practicable given the geographical matters previously referred to and given the parents support of such an arrangement, one for the other. Their capacity to communicate even before a consideration of their capacity to resolve difficulties remains problematic but they have managed in a rudimentary way and to lessen [X]’s time spent with his father would have an adverse impact upon him. In his father [X] has a loving father.
The best interests of [X] are the paramount consideration (s.60CA). The orders which the court makes acknowledge the benefit to [X] of having a meaningful relationship with each of his parents and the court is satisfied there is no evidence before it which would establish the child is in need of protection as set out in s.60CC(2)(b) of the Act.
The court has looked at the evidence in light of those additional considerations required to be considered pursuant to s.60CC(3) of the Act. Subparagraphs (c), (d), (f) and (g) are particularly pivotal in these proceedings, as indicated in these reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 12 November 2010