Barnes and Abbey - [2010] FMCAfam 1365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARNES & ABBEY

[2010] FMCAfam 1365

FAMILY LAW – Parenting – previous orders when subject child very young – later contravention proceedings and application for variation – continued deterioration in parental relationship – consequential effect upon the psychological wellbeing of the child – consideration of whether equal shared parental responsibility is appropriate in the circumstances – determination as to parental responsibility – requirement for child’s continued attendance at school presently attended unless joint agreement to change – consideration of substantial and significant time including the child’s wishes – arrangements for sharing holiday times.

Family Law Act 1975, ss.60CA, 60CC(2) & (3), 65DAA, 65L

Applicant:

MS BARNES

Respondent:

MR ABBEY

File Number:

CSC 872 of 2007

Judgment of:

Coker FM

Hearing date:

24 November 2010

Date of Last Submission:

24 November 2010

Delivered at:

Cairns

Delivered on:

3 December 2010

REPRESENTATION

Solicitors for the Applicant:

Self-Represented

Counsel for the Respondent:

Mr Jacobs

Solicitors for the Respondent:

Cuthbertson & Co Lawyers

ORDERS

That all previous parenting orders be discharged.
That the Father and the Mother have equal shared parental responsibility for decisions relating to the major long term issues of the child, [X] born [in] 1997, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 2 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with the Mother; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with the Father.
That the child live with the Father during each gazetted school term as follows:
(a)On a four week rotation basis, from after school Thursday in weeks 1, 2 and 3 of each four week period, until before school on Monday, or Tuesday should the Monday be a public holiday or pupil free day, commencing anew in the first week of each school term.
That the child otherwise live with the Mother.
That during the gazetted school holiday periods the child spend the first half of the school holidays in each even numbered year with the Mother and the second half of the school holidays in each even numbered year with the Father, and further that the child spend the first half of the school holidays in each odd numbered year with the Father and the second half of the school holidays in each odd numbered year with the Mother.
That the child continue at the [M] High School, unless otherwise agreed between the parties in writing, or ordered by a court of competent jurisdiction.
Each party in compliance with the parenting orders included herein, as far as practicable comply with the supervision and involvement of a Family Consultant for a period of 12 months, pursuant to the provisions of section 65L(1) of the Family Law Act and that such monitoring be reportable and the matter brought back for further mention in the event of concern. That each party comply with the lawful and proper direction of the Family Consultant, including attend at a Post-separation Parenting Program should that be recommended by the Family Consultant.
That for the purposes of defining the first and second half of gazetted school holiday periods that the following apply:

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Tuesday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school until 9.00am on the Wednesday five days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 9.00am on the Wednesday until 6.00pm on the Sunday preceding the recommencement of school;
(e)The first half of a gazetted end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of a gazetted end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)
The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling

22 days later;
(h)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

IT IS NOTED that there is no agreement as between the parents to share special days including Christmas Day, Mother’s Day, Father’s Day, the parents’ and the child’s birthday and accordingly no orders are made with regard to opportunities to spend time with the child on those days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 872 of 2007

MS BARNES

Applicant

And

MR ABBEY

Respondent

REASONS FOR JUDGMENT

These proceedings relate to arrangements sought to be made or perhaps more accurately, sought to be clarified in relation to the parenting of the child, [X]. [X] was born [in] 1997 and is, therefore, recently turned 13 years of age. He is the child of the relationship between Ms Barnes, whom I shall refer to as the mother, and Mr Abbey, whom I shall refer to as the father.
The parties were in a relationship between about 1996 and 2001. Accordingly, it can be seen that with [X] having been born in 1997, that the parents separated at a time when he was only some 3 or, perhaps, 4 years of age.
They then entered into the litigation process and finally at the door of the court, on 28 July 2003, they entered into orders by consent, which provided for the parenting of the child. As is perhaps obvious at the time that those orders were agreed, [X] had not yet turned 6 years of age. The orders provided for the child to, as was the terminology at the time, reside with the father for set periods of time and to reside with the mother for other periods of time.
It was also agreed that there should be joint responsibility for long term decisions concerning the child's care, welfare and development and it was hoped that that would be the end of proceedings. Unfortunately, such hope was forlorn and whilst the arrangements worked for some years, in October 2007, contravention proceedings were brought by the father. Thereafter, there seems to have been a continued series of applications and proceedings before the Court, which culminated in this matter proceeding to trial.
Unfortunately, as is obvious, there has been literally three years passing from the commencement of the litigation process, that being a contravention application, to the final determination in respect of the proceedings. What is also tragic is that these parents' dealings with each other have, if anything, become more intense in the acrimony one feels toward the other, and it has led to very real concerns in relation to the wellbeing of the child.
The final position in relation to the matter is outlined in the amended initiating application and amended response filed respectively by the mother and the father. The orders sought by the mother in relation to the child are in these terms:
1. That the child, [X] born [in] 1997, shall reside with the mother.
2.That the parties shall have joint parental responsibility for all long term issues concerning the child.
3.That the child spend time and communicate with the father at all times as agreed, but failing agreement as follows:
(a)From after school Thursday until commencement of school Monday, or Tuesday if Monday is a pupil free day or public holiday in each alternate week;
(b) For half of all school holidays being the first half in odd numbered years and second half in even numbered years;
(c) Child’s birthday. If the child’s birthday falls on a school day and the child is not in the father’s care then from after school until 6.00pm or from 9.00am until 2.00pm if a non school day;
(d)Father’s birthday. If the father’s birthday falls on a school day and the child is not in the father’s care then from after school until 6.00pm or from 9.00am to 9.00am the following day if a non school day;
(e)     From 3.00pm Christmas Day until 10.00am Boxing Day;
(f)      By telephone and email at all reasonable times.
4.When the child resides with the father, the mother shall see the child:
(a)Child’s birthday. If the child’s birthday falls on a school day and the child is not in the mother’s care then from after school until 6.00pm or from 9.00am until 2.00pm if a non school day;
(b)Mother’s birthday. If the mother’s birthday falls on a school day and the child is not in the mother’s care then from after school until 6.00pm or from 9.00am to 9.00am the following day if a non school day;
(c) From 3.00pm Christmas Day until 10.00am Boxing Day if not already with the mother;
(d)     By telephone and email at all reasonable times.
5.The party having care of the child at any given times shall have sole responsibility for all day to day decisions concerning the child’s care, welfare and development that are not long term issues.
6.In the event that the child is seriously ill, injured and/or hospitalised for any reason, the parent that they are with must notify the other parent as soon as practicable with details regarding the condition and location of the child (including the names and contact details of the child’s medical practitioners) to enable the other parent to visit and or communicate with the child.
7.Neither party will denigrate the other in the presence or hearing of the child and will use their best endeavours to ensure that no other person does not do so.
8.The parties shall notify the other in writing within seven (7) days of any change of address or telephone number.
9.Neither party will use physical discipline in relation to the child not permit any other person to do so.
10.The parties will not discuss adult issues with or in the presence or hearing of the child and will use their best endeavours to ensure that no other person does not do so.
The orders sought by the father are contained within the amended response which was filed by the father on 17 June 2010 and were in these terms:
1.The parties shall have equal shared parental responsibility for the child [X] born [in] 1997, concerning the child’s long-term care, welfare and development.
2.The child shall live with the Father at all times as may be agreed between the parties and failing agreement as follows:
(a)On a four week rotating cycle, as follows
(i)From 3.00pm Wednesday to 9.00am Monday in the first week; and
(ii)From 3.00pm Thursday to 8.00am Sunday in the second week; and
(iii)From 3.00pm Wednesday to 9.00am Monday in the third week; and
(iv)Not during the fourth week of the cycle.
(b)From 9am on Father’s Day until 8am the following day;
(c)From 9am on the Father’s birthday until 8am the following day;
(d)For four (4) hours on the child’s birthday;
(e)From 3pm on Christmas day until 10am Boxing Day when the child is in the Mother’s care, commencing 2009.
(f)For one half of all school holiday periods.
3.Where the child is on the care of the father, the child shall spend time with the mother as follows
(a)For four (4) hours on child’s birthday;
(b)From 9am on Mother’s day until 8am the following day;
(c)From 9am on the Mother’s birthday until 8am the following day;
(d)From 3pm on Christmas day until 10am Boxing Day.
4.The child shall live with the mother at all other times.
5.The party having care of the child at any given time shall have sole responsibility for all day to day decisions concerning the child’s care, welfare and development.
6.In the event that the child is seriously ill, injured and/or hospitalised for any reason, the parent they are with must notify the other as soon as practicable with details regarding the health condition and location of the child (including the names and contact details of the child’s treating medical practitioners) to enable the other parent to visit and/or communicate with the child.
7.The parties shall notify each other in writing within seven (7) days of any change of address or telephone number.
I was assisted in relation to these proceedings by the provision of two family reports. The family reports prepared by family consultant,

Ms E, dated respectively 31 March 2009 and 9 September 2010. Those reports addressed issues in relation to what arrangements should be made with regard to [X] and, in particular, noted the deterioration between March of 2009 and September of 2010 in the psychological wellbeing of the child. In particular, Ms E noted that there were real concerns about this young boy.
Under the heading, "[X]'s views, wants and needs" in the second report, Ms E says the following:
[X] wants and needs peace. He loves school and he wants to get on with it. [X] needs to be protected as much as possible from his parents' toxic and destructive relationship. However, he also wants to spend more time with his father (this is age and stage appropriate). He also needs an orderly, predictable visiting regime.
Ms E noted, in particular, that there had been deteriorations in respect of what she first observed in relation to the child. Under the heading, "Conclusion - the family dynamics and its impact on [X]" she says the following:
"1.     [X] presents as an intelligent, young person caught up in his parents’ deeply embedded conflict. After speaking about his views with the writer, he panicked and became convinced he would upset one of his parents. Whatever happened after our discussion was for [X], "the final straw". In my opinion, it may have been either little or too much input from the mother. This remains unknown.
2.     However, the most characteristic feature of this assessment was [X]'s changed presentation. He has gone from strong and resilient to helpless and "melting down". It is tempting to blame one or other of the parents for this. However, in my opinion, it is the toxic parenting relationship which does the damage.
3.     For [X], there are years of accumulated stress from the ongoing hostility between his parents. On the day, there was the stress of the assessment, the worry about expressing his views and upsetting one of his parents, then the reality of actually talking about what he wanted with the report writer as well as the trip home that night. All this combined could have been overwhelming. The trigger may very well have been just a small conversation with the mother.
4.     [X] needs urgent assistance. He will develop a mental health problem if something is not done to relieve his level of distress. From assessment, [X]'s characteristic resilient personality observed 18 months ago, was absent. Showing alarming signs of being emotionally worn down, [X] just wants to have peace in his life and to be free of his parents' never ending fighting over him.
It is rare that one would be as troubled as I am as a result of those four paragraphs. If it were the case that there was such severe physical harm being caused to a child, as a result of the actions of the parents, one could not imagine that there would be any delay whatsoever in the appropriate state authorities removing the child from the harming situation brought about by the actions of the parents, because it would be the correct step to take in order to protect the child.
Yet, because this child is, in so many ways, resilient and able to balance the dreadful emotional distress that he experiences as a result of the behaviours of his parents, he is left to deal with this difficult situation himself.
Whilst I have some doubts as to whether either parent fully appreciates the harm that they are doing to this child, I have very real concerns that unless there is a realisation, and not simply a token expression by one parent or the other of their intention to be "better parents", then there will be, in time to come, total rejection of one parent or the other, or perhaps both, by this child. And it will be the child who loses out and the parents who lose that important relationship which needs to be fostered and developed into the young adulthood of every child.
The comments that were made by Ms E were chilling in their factual indication of the deterioration that she, as an expert, saw in relation to this child. It was an horrendous statement of the actions of the parents and more particularly, an horrendous indication of their lack of any appreciation of the direct harm that they are doing to the child.
One can only hope that they appreciate, perhaps at even this late stage, that they must change because, to fail to do so, is an abject failure of the ultimate responsibilities that they have as a parent to this child.
An indication of the difficulties that the parents, in fact, experience and show in accepting any responsibility is indicated by point 5 under the heading "Conclusion" at page 6 of the second report of Ms E. She says the following:
5. Although both parents deny involving him in their adult conflict to any large extent, [X]'s presentation contradicts these statements. [X] said he has observed their fights and also been shown court material. His embarrassment and concern over another child's welfare ([Y]) after witnessing their altercation, is touching. He was critical of both of his parents and said it was "not right to do that in front of [Y]". He said they should not fight openly in front of "other" children because it is detrimental for them having to watch. He appeared oblivious to the fact that he should not have to watch them fight either. He appeared to have normalised their behaviour and accepted their behaviour into his world view as just being part of his lot in life. [X] also said he would never do that to his own children, and I don't think he ever will. The damage to [X] is internal and emotional. His future level of adjustment as well as his capacity to adjust to normal circumstances is, in my opinion, almost completely compromised.

Ms E goes on as follows:
6. It is apparent that his strategies to protect himself and his "strong, individual, independent streak which protects him" (identified in the last report dated March 2009) is letting him down. He is learning to be helpless as he perceives himself ”stuck” in his parents' conflict. Ironically, where his parents should be protecting him, it is [X] who appears to be trying to act protectively about his parents despite no longer being able to protect himself.
Ms E's comment at paragraph 7 is, I think, an understatement of the highest degree. She says:
Mr Abbey and Ms Barnes need to very careful. In my opinion, [X] will either develop a serious mental illness, rebel badly and reject one or both. Or, he may just become a shadow of the man he could/should be.
As I said, I have rarely been as disturbed by the comments that I have seen within family reports as I was by these comments. In a period of 18 months, the actions of these two apparently caring, loving and nurturing parents has torn the very fabric of their son's emotional wellbeing to shreds. Without a shadow of a doubt, they should both hang their heads in shame. They have both taken every possible step they could to score points against each other, and the absolute tragedy is that their son, to whom they profess the profoundest and deepest affection and love, has been the collateral damage.
I am minded very much to, in fact, put in place orders of an interim nature in relation to this matter and then to make directions with regard to the further investigation in a period of 12 months, to consider whether there has been any change in the behaviours of one or other of the parents, and if there is not change on the part of both parents, to reconsider the best interests and the welfare of the child.
I must say that I gave serious consideration to such steps being taken in relation to this matter, because it is clear that this child is hurt and continues to be hurt on almost a daily basis, by the appalling and uncaring behaviours of both of his parents. In the end, I have determined that that is not in the best interests of this child simply because he, of all the parties in these proceedings, deserves a settled, stable and appropriate routine in relation to future arrangements with regard to his care. He should not have hanging over him a threat of a further change in what arrangements might be put in place because his parents, acting in a most inappropriate manner, are unable to put the child's best interests ahead of their own.
Rather, I intend to consider, as I believe is appropriate, the making of an order, pursuant to the provisions of section 65L, which will provide for monitoring of this situation for a period of 12 months. I intend, quite obviously, to make such monitoring reportable and in the event of a concern being expressed in relation to either parent and their behaviour, to have the matter able to be listed urgently before me.
I obviously indicate to both parents that, in light of the serious concerns that are held in respect of this matter, if it were to be considered by an experienced family consultant that there was continuing destructive behaviour by one parent or the other, in relation to the child then, notwithstanding the hurt that [X] might experience in the short term, in order to promote the need for protection that arises in relation to this matter, to sever ties with that destructive parent and that destructive parent's behaviours is, in my view, the only appropriate course to follow.
I trust that such steps will not be necessary in relation to this matter, but I counsel each parent to be mindful of the very serious concerns that are held in relation to this matter. This child has been hurt dreadfully as a result of their behaviours and their failure to put the child ahead of themselves. Each parent should, as I have already stated, hang their head in shame at what they have done to the person they profess to love more deeply than any other person on this planet.
It is a tragedy and it is a matter which must be addressed, because a failure to address it by the parents and a failure to further address it by the courts is a total abrogation of the responsibilities that are held toward the child. In that respect, I am mindful, of course, of the guidance that is provided to the Court but is also, of course, guidance that should be taken on by every parent as contained within the provisions of 60CA of the Family Law Act. It is in these terms:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The parents have failed in their ultimate obligations and responsibilities in relation to the child and it is a tragedy and one that must be addressed.
This child wants more time with his father. The mother's proposals in relation to this matter are for there, in fact, to be less time than is already provided pursuant to the orders that were put in place some seven years or more ago. The mother has no real explanation in relation to that, other than to say she has concerns in respect to generalised allegations of domestic violence within the father's household. The child reports none. The mother is unable to provide any verification whatsoever in relation to concerns, other than a rather unfortunate suggestion that an application for domestic violence was made in 2009 but not pressed by her.
When questioned in relation to that particular aspect of the matter, her best explanation was to say that she, in the cold light of day, did not consider that such proceedings being brought and orders obtained would be in the best interests of the child. Unfortunately and rather cynically, I am more inclined to the view that she became, perhaps even at that late time, aware of the fact that, the bringing of an application without any prospect of success, and there appeared to be very little, if any, chance of that occurring in relation to her proceedings, would perhaps have been more damaging to her position in relation to the matter than would be the bringing of the application itself.
There is no basis upon which there could be a suggestion of domestic violence which would influence the child or directly affect the child. I am more inclined to the view that the statements made by [X] to Ms E relating to not having witnessed domestic violence, at least between his father and his father's partner, are true.
What I am also, unfortunately, convinced of is that the horrendous verbal exchanges and actions of both parents toward each other, in the presence of the child is domestic violence. And again, it is a situation where each parent must seriously consider their own behaviours in the past, but more particularly, now and into the future, because to fail to do so, is a total failure to meet the responsibilities that are required in relation to the parenting of this child.
Ms E commented about the need for there to be more time spent by [X] with his father, except in the instance where I were to find that there was a risk to the child arising from aspects of domestic violence. I do not find that there is any basis upon which I could make such determinations, in relation to this matter.
I am satisfied that this child's need, understandably in light of his age, is for an opportunity to have a meaningful relationship with both of his parents. It is troubling that what would perhaps have been the most feasible arrangement, a week-about arrangement, was initially acceptable to the child, but then after departure from the offices of

Ms E when interviews were done, there was a radical change in respect of the child's perspective. Ms E commented upon that and I have already made reference to it. Whether it was as a result of influence brought to bear by the mother, or simply the culmination of the enormous pressures that have been brought to bear upon this child, lead one to believe that it is no longer workable or feasible.
Ms E commented as such when evidence was given in relation to this matter, but also commented about the father's proposals and the mother's proposals. The father's proposal for a four week roster which involved five nights, three nights, five nights, no nights in a four week rotation was seen by the child to be too unwieldy, even whilst she commented that he referred to himself as an organised person, it would still be too hard.
She also commented about the mother's proposal, which was to all intents and purposes, a reduction in time to be spent by the child with the father and if that were to be the case, without there being clear evidence of domestic violence, then it simply failed to appreciate, as the mother should properly have done. That this is the child's wish, that this is normal, that this is appropriate, and that a reduction in time would be nothing other than destructive, not only of the father's already close relationship with the child, but also destructive of the child's wish to foster a closer relationship with the male figure, primarily in his life.
I have had the opportunity of reading all of the material in this matter. I have thought long and hard about what arrangements should be made, being mindful of the various factors that should be considered particularly with regard to parental responsibility and also those matters that must be considered pursuant to the provisions of section 65DAA, as well as the considerations set out in section 60CC(2) and (3).
Whilst the starting point is, as I have already noted, the provisions of section 60CA, that the paramount consideration is the welfare of the child, there are also the statutory requirements to be considered in relation to arrangements.
Both the mother and the father, in their material filed in these proceedings, proposed that there should be orders for joint parental responsibility in relation to the child. Notwithstanding that apparent agreement, it is clear that Ms E was not of a mind to consider that that was in the best interests of the child. Ms E recommended in the report of 9 September 2010 that there should be a situation where the mother has sole responsibility for decisions to be made in relation to [X].
It is noteworthy that that was not her opinion 18 months before, in March 2009, where she suggested that if the mother were to remain living in the [P] area, that the present arrangements contained within the orders of 2003 should continue to be operative. Of course, those orders, as I indicated, provided for joint responsibility in relation to the parenting of [X] and to the decision making process to be followed.
When Ms E was challenged in relation to that proposal, the best indication that she could give in relation to the arrangements was that because of the “toxic and destructive nature of the relationship between the mother and the father”, and because the mother had the primary care of the child, it was appropriate that she should have sole parental responsibility. Of course, at the same time, when questioned about what might be the case if the mother, as appeared to be indicated, intended to make a move to Cairns and that she, therefore, would be able to make variations without consultation particularly in respect of education, it seemed that Ms E, at least from my perspective, drew back from that position. And whilst she was concerned about the toxic nature of the interactions between the parents, could note that there would be further difficulties and, if you like, avenues for dispute between the mother and the father, if the mother were to have that decision making process.
I am of the view that there is a reason here for there to be continued equal shared parental responsibility. There should obviously be consultation. If there cannot be agreement then, as I have indicated, for a period of at least the next 12 months, there will be what might be called an "honest broker" in place, pursuant to the provisions of these orders, with whom discussion can be had. But as there is a need for certainty and this child deserves that, I intend also to make orders with regard to the child's continued attendance at the [M] High School, unless there is joint agreement in writing by the parents to change the school for the child or, alternatively, orders of a court of competent jurisdiction to do so.
This child deserves and should expect nothing less from his parents, than that they can speak with each other and make decisions that are in the child's best interests. If they fail to do so, then it is clear that there must be a change but I am not satisfied at the moment that the parents, even as poorly as they have behaved in the past seven years, cannot put the child to the fore. If they fail to do so, as I have already noted, they fail as they have done in the past to put the child's best interest and they fail abysmally to meet the obligations that are necessary in relation to the child.
I intend to make orders with regard to equal shared parental responsibility and I intend to make orders which provides specifically for the child's attendance at the school that he currently is involved with and at which it appears, from every skerrick of information available, has been a stabilising influence in the child's life and a place where he feels safe, secure and is able to progress with his education.
He clearly is a bright child. What is tragic is that some of the glow that was noted by Ms E in March 2009 has faded by September 2010. If there can at least be some constancy for this child in the future with regard to education, there is a hope for the future even if the parents do fail to meet the obligations that are necessary in relation to this matter.
Having determined that notwithstanding my reservations that it is appropriate that there should be equal shared parental responsibility, I am required to turn to considerations of those matters which arise pursuant to the provisions of section 65DAA. Section 65DAA(1) through (5) is in these terms:
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)   the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)   the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(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.
Obviously there must be consideration as a starting point, there having been a determination for equal shared parental responsibility to the orders which provide for equal time. In fact, Ms E initially thought that that would be appropriate and I must say that it also occurred to me that that would be a proper course to follow. But, just as clearly, it is not what the child wishes and is not what the child is presently used to.
Obviously significant and substantial time is appropriate and whilst the mother is at perhaps the lower level of what would be significant and substantial time proposed in relation to the matter, she is within what might be termed "the ball park". The father seeks, understandably, for a far more significant involvement in the child's life and in total, as was detailed in the schedule that was proposed, seeks 13 nights out of each 28 with the child in his care. His proposal, however, for a five, three, five, zero breakdown of nights in a four week rotation is unwieldy and was commented upon as such by the child.
I am far more inclined to the view that an appropriate arrangement would be for there to be consistency in respect of the time to be spent by the father with the child and, as is it is sought by the child, it seems appropriate that it should be facilitated. In my view, the appropriate course is that there should be a continuation of the four week rotation as currently exists but that it should be extended such that it be during the school term. From after school Thursday in weeks 1, 2 and 3 of each four week rotation, with the four week rotation to resume in the first week of school in each term, notwithstanding who may or may not have had the child in their care in the last week or weeks of the school holidays, or who may or may not have had the child in their care for the last week of the preceding gazetted school term. It will provide certainty and, if nothing else, this child deserves that.
I intend, however, to slightly vary the proposal in that the child would then return to school on a Monday in each of those first three weeks and from after school on the Monday, would then proceed to the mother's house except if the Monday were to be a public holiday. In which case, the child would remain in the care of the father for that additional day and return to school and, therefore, to the mother's care on the Tuesday.
It provides certainty. It provides stability. And it provides for the child's wish for more time with his father including, perhaps, those more physical pursuits that the father and the son clearly are able to do together being met. It also provides clearly for substantial and significant time to be spent by the father with the child as well as by the mother with the child and addresses those matters that must be looked at pursuant to the provisions of section 65DAA(5). Quite clearly, it is obvious that there is a position which provides certainty for the child but, at the same time, addresses those matters that are set out in subsection 65DAA(5)(a) - (d).
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(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;

The parents live in close proximity. The arrangements have been able, albeit with difficulty on the part of the parents, to be facilitated and to keep being facilitated. The parents' current and future capacity to implement such an arrangement is obvious and there is clearly an intent on their part for that to occur, though there were different perspectives considered by the mother particularly, if she were to make a move to Cairns. The child would have some more significant travel required but it is not something that, I would think, would be unable to be resolved.
Subsection (c) is, of course, an issue which looms large in this matter. There must be consideration of the parents' current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of the kind that is proposed. The parents are, if you like, on their last chance. The child deserves more and, I must say, that the Court and society generally expect more than either have provided in relation to this child at the moment.
As I have indicated, my intention is to put in place an arrangement for continued monitoring of this situation pursuant to the provisions of Section 65L of the Family Law Act and by doing so there can be that opportunity for the matter to be brought back before the Court, in the event of the parents failing to meet the clear obligations that they have in relation to the parenting of the child.
Insofar as subsection (d) is concerned, it is a matter that looms large here in relation to this matter and also is significant in the considerations that must be looked at pursuant to the provisions of section 60CC(2) and (3). The impact of the arrangement on the child would be minimal. It would be far less significant a change than either parent otherwise suggests in respect of meeting [X]'s best interests. It is an important consideration in respect of the determination of this matter and I am satisfied that when one looks at all of those issues that arise pursuant to the provisions of section 65DAA(5), that the orders that I intend to make and to which I have alluded already, best reflect the interests of this child.
I turn then as I must to the considerations set out in section 60CC(2) and (3). The primary considerations are the child's right to a meaningful relationship with each of the parents and, of course, there is a meaningful relationship in existence. It is one that can only be improved by a direct improvement in the parents' behaviours. But that is something that they can best address and, as I have indicated, a failure to do so will have catastrophic consequences for the child and, I would also think, for the parents.
The balance to be looked at in relation to the primary considerations is set out in section 60CC(2)(b). It relates to the need to protect the child from physical or psychological harm and I have already indicated that each parent has fallen enormously short of what is expected in relation to providing protection for this young man now and into the future.
There is a need to protect the child. There is a need for the child to have a meaningful relationship with each of his parents and at the present time the behaviours of both parents have led to concerns in relation to what is to be put into effect. One hopes that there is a final awakening and that the child's psychological wellbeing will be protected. But as I have indicated, there will be, at least for a period of 12 months, monitoring of those behaviours by each of the parents and if they are not addressed, no doubt, it will be a matter which will have significance in relation to any further consideration of this matter.
Insofar as the additional considerations set out in section 60CC(3) are concerned, there are no real factors that influence me in relation to a determination one way or the other over and above those matters to which I have already referred particularly with regard to psychological harm to the child.
The child has an affection for each parent. The child is obviously bonded with each parent. The child obviously wishes more time with his father. The child's wishes are significant and are maturely considered by the child and same is referred to in the reports of Ms E.
Both parents are able to meet what might be called the fundamentals of provision for the child. No doubt, each can provide by themselves for his intellectual and emotional development, excluding what emotional damage they may cause when they fail to meet their obligations with regard to the positive fostering of a relationship with the other parent.
Both parents have a reasonable understanding of their responsibilities in respect of parenting, other than any appreciation, it would seem other than token appreciation, of what is expected in relation to their fostering of [X]'s relationship with the other parent. That situation and circumstance must change because to fail to do so is, as I have said, a fundamental failure of their obligations and responsibilities in relation to parenting. It is also a recipe for disaster, either with regard to this child's mental health and that is tragically already evidenced in the report prepared subsequently by Ms E, but there is also that real prospect of the child rebelling against both parents and rejecting both parents and the consequences for [X] and for the parents is one that neither parent should, I would think, wish to contemplate.
The arrangements that provide certainty for this child are as I have indicated. There needs to be certainty in relation to birthdays for the child and there needs to be certainty in relation to Christmas. It is again a tragedy that the parents would appear to accept that it must be an equal division of the Christmas holiday period and that, even if in the same locality, on the child's birthday and on the child's celebrations of Christmas, they could not both have the opportunity to spend time with the child. As I have said, there is much in this matter in which there can only be a shaking of heads by those watching from outside, at the behaviours of two mature sensible adults when it comes to putting their child to the fore.
But there must be that secure, stable arrangement that I have already referred to in relation to the child. The mother, in particular, seeks the opportunity to spend the first half of 2010/2011 Christmas school holiday period with the child and wishes to travel with the child to visit family in Tasmania. The father says that is not appropriate because the mother had that opportunity last year. The mother's evidence given in relation to this matter was that the father's recollection of events was incorrect.
In the end, it is not necessary, I think, for me to make a finding as to whether one parent or the other is mistaken or even lying in relation to this matter. What is appropriate is to put in place structure now and into the future. The father does not depose to any particular arrangements which he might have put in place, or wishes to put in place, with regard to Christmas other than that he seeks to have the child in his care for the first half of the Christmas school holiday period. The mother seeks an alternative and deposes to the fact that she says [X] is looking forward to the opportunity of visiting family in Tasmania. The father does not challenge that and the mother was not questioned in relation to it.
I accept that putting in place a settled routine now and into the future is the most important consideration and in the circumstances that exist, I am satisfied that it is appropriate that there should be an order for the commencement of holidays, such that the mother is to have the first half in even numbered years and thus the first half of the Christmas school holiday period commencing in December 2010. And the second half in odd numbered years, and the alternative being the first half in odd numbered years and the second half in even numbered years with the father. It provides certainty.
One would hope that there could be some sense of balance in relation to arrangements in the future with regard to birthdays and Christmas if in the same locality. One would think that this child will eventually be mature enough, even if his parents are not, to determine what he wishes to do. One can only hope that the parents will finally see the light that must fall on this particular situation, if there is to be any positive outcome drawn.
In the end, however, there must be a stable framework to develop from and if there is, unfortunately, that continued failure on the part of the parents to work together, then at least certainty for the child in relation to the matter.
The orders that I intend to make, therefore, in relation to these proceedings are, I hope, least likely to lead to further proceedings or if that is not the case, then likely to lead to only one further determination in relation to the matter because I assure each parent that this child deserves more than the continued dispute that has existed in relation to the matter.
The orders of the Court are as detailed at the commencement of these reasons.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 3 December 2010