Bond and Pearcy

[2010] FamCA 1021

FAMILY COURT OF AUSTRALIA

BOND & PEARCY [2010] FamCA 1021

FAMILY LAW – CHILDREN – where child 13 months at separation – where parties entered consent parenting orders – where orders provide gradual increase in times child has with father – where court satisfied significant change in circumstances – where father proposes equal time – where mother primary carer – where child has lovely relationships with all important family members – where parties able to communicate civilly but superficially – parties assessed to have limited ability to communicate – child to live primarily with mother and have significant and substantial time with the father

Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61C, 61DA, 61DB, 64, 65AA, Pt VII

Evidence Act 1995 (Cth) s 140

Rice and Asplund (1979) FLC 90-725
Goode and Goode (2006) FLC 93-286
Mazorski v Albright (2007) Fam  LR 516
McCall & Clark (2009) FLC 93-405

APPLICANT: Mr Bond

RESPONDENT: Ms Pearcy

FILE NUMBER: (P)NCC 3453 of 2007

DATE DELIVERED: 22 September 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 14 & 15 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B Kelly

SOLICITOR FOR THE APPLICANT: Bridge Street Lawyers

COUNSEL FOR THE RESPONDENT: Mr N Jackson

SOLICITOR FOR THE RESPONDENT: Jarratt Webb & Graham

Orders

1. That the parenting orders made in this Court on 6 March 2006 in relation to the child M born … July 2004 are discharged.

2. Order 1 made in this Court in relation to the child on 30 January 2008 is discharged.

3. The child shall live with the mother.

4. The child shall spend time with the father as follows:

   (a)during school term from 6.00 pm Friday until 6.00 pm Sunday each alternate weekend commencing from the weekend upon which the father was next due to spend time with the child pursuant to Order 2C(i) dated 16 March 2006;

   (b)during school term every second Wednesday from after school until the commencement of school the following morning;

   (c)commencing Term 1 2011, during school term alternate weekends are extended so that they commence from the end of school on Friday and continue until the commencement of school on Monday;

   (d)during school holidays at the end of Terms 1, 2 and 3 during the first half in even numbered years and the second half in odd numbered years;

   (e)on J’s birthday from the conclusion of school until 6.00 pm on a school day and from 12.00 noon until 6.00 pm on a non-school day;

   (f)in the event the father’s time with the child occurs on a day adjacent to a public holiday, the period is extended to incorporate the public holiday;

   (g)at such other times as the parties may agree.

5. If the mother’s birthday occurs during a period when the child is with the father, the child’s time with the father is suspended from the conclusion of school until 6.00 pm on a school day and from 12.00 noon until 6.00 pm on a non-school day.

6. In the event the child has been in the father’s care for the second half of the school holidays his weekend time with the child shall recommence on the second weekend after school began and if it was the first half on the first weekend.

7. In the event the child has been in the father’s care for the first half of the school holidays alternate Wednesday overnights shall recommence in the first week after school term began and if it was the first half in the second week.

8. The father shall facilitate regular telephone contact between the child and the mother each Sunday and Wednesday between 6.00 pm and 6.30 pm.  The mother shall telephone a number nominated by him.  If the child is unavailable the father shall assist the child to return the missed call as soon as is reasonable.

9. The mother shall facilitate regular telephone contact between the child and the father each Sunday and Thursday between 6.00 pm and 6.30 pm.  The father shall telephone a number nominated by her.  If the child is unavailable the mother shall assist the child to return the missed call as soon as is reasonable.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

11. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 3453 of 2007

MR BOND

Applicant

And

MS PEARCY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are proceedings for parenting orders about the parties’ daughter M (“the child”) who is six.  She was 13 months old when her parents separated and since then she has lived with the mother and spent regular periods with the father.  The parties entered into final parenting orders on 6 March 2006.  These orders provided for the child to have weekly overnight visits with the father of varying lengths, three weeks in four with the amount of time he would spend with her during the fourth week, if any, to be determined by the mother.  The orders were structured in a way which increased the child’s time with the father from July 2007 and again when she started school.  Provision was made for the father to spend time with the child on nominated special occasions.

2. The father was dissatisfied with the orders and the mother’s rejection of his requests for additional time with the child.  He was also dissatisfied with the structure of parental responsibility for the child.  He was particularly aggrieved that twice the mother authorised the child’s admission to hospital without him being told about this until after she was discharged.  Thus, he applied to vary the March 2006 orders.  On a number of occasions the father amended his application and at this hearing, in summary, he applied for orders which would increase the amount of time the child spends with him until, by the time she is in year 1 at school, her time would be divided equally between the parties.

3. On 30 January 2008 the parties agreed to vary the 6 March 2006 orders so that they would have equal shared parental responsibility and made provision for the child to spend time with the father during the fourth week of each four week cycle. 

4. It is the mother’s position there now exist a suite of orders which strikes the right balance between the important elements of the child’s life and which she said promotes her long-term interests.  While the mother was amenable to minor variations to the current orders, it is her belief these are unnecessary and they are offered as appeasement. 

5. The child at the centre of this strongly contested litigation is dearly loved by her parents and four grandparents with whom she enjoys lovely relationships.  She enjoys a happy relationship with each of her parents’ partners and is delighted by the recent birth of her half-brother born to the father and his wife.  The family consultant described the child as “easily engaged, fun loving and well adjusted.”  There was no dispute about the accuracy of these observations.

6. The central issues in these proceedings related to the nature of the parent’s relationship and their ability to communicate at a sufficiently sophisticated level such that the changes which the father proposed could be implemented without undermining the child’s wellbeing.  A separate but linked issue concerned the effect on the child of a reduction in the time she would spend with her primary carer. 

Short history

1. Unless I have stated differently throughout these reasons, the balance of probabilities will determine findings of fact. Section 140 Evidence Act 1995 (Cth).

2. Mr Bond (“the father”) was born in 1973.

3. Ms Pearcy (“the mother”) was born in 1976.

4. The parties commenced cohabitation on 24 August 2002. 

5. M, the child, was born in July 2004.

6. In December 2004 the parties separated for a few weeks.

7. On 23 August 2005 the parties separated.  They have not resumed cohabitation.

8. The following day the father moved in with his parents and two days later the mother returned to their home. 

9. As a result of an incident on 25 August 2005 the mother applied for an Apprehended Violence Order. 

10. After the parties separated the child remained with the mother who offered the father contact supervised by her or her parents.  Reluctantly the father agreed to see the child supervised.  He was pleased to see the child but also the mother.  The mother was concerned by what she felt was the father’s focus being on her during these visits rather than on the child.  In any event, the parties met at coffee houses, parks and at the mother’s home.  On these occasions, contact between them was civil and unremarkable.  So that it is clear, the father’s claim he was denied contact with the child for 16 weeks was untrue.  The mother facilitated regular supervised contact but refused his requests to see the child without supervision by her or a member of her family.   

11. In September 2005, while the mother was away, without her consent the father moved back in to their home.  When the mother discovered this, she moved into her parent’s home.  Although it was difficult to be certain, it would appear that while the mother was away police withdrew the application for an Apprehended Violence Order sought in relation to the 25 August 2005 incident.

12. For about two weeks in late September – early October 2005 the mother and child went away.  While they were away the father did not see the child.  Supervised visits resumed when they returned.

13. On 18 October 2005, the parties attended mediation.

14. The mother sought a further Apprehended Violence Order on or about 28 October 2005.  On that day, an interim Apprehended Violence Order (AVO) issued at the Local Court for her protection from the father.

15. The interim Apprehended Violence Order came before the Local Court on 7 November 2005.  The application was adjourned for about 6-9 months during which period the interim order continued.  On the next occasion, the mother instructed police she wanted the application withdrawn, which it was. 

16. On 15 November 2005, the father executed final parenting orders which the mother signed on 17 November 2005.  These orders were presented to the Family Court at Newcastle and entered on 6 March 2006 (“the consent orders”).  The father has spent time with the child as stipulated in these orders, with minor variations for special occasions agreed to from time to time.

17. By 2007 the father was dissatisfied with the 2006 orders and asked the mother to attend mediation to discuss how these could be amended.  Essentially the father was aware of changes to the Family Law Act and hoped he might secure more or equal time with the child.  It is his opinion the mother’s refusal to renegotiate the 2006 orders was unreasonable.  For her part the mother considered the 2006 orders with their staged approach worked well.  Having been through significant negotiations to reach agreement in 2006, she was unwilling to revisit the issue.  Her position was not unreasonable and is consistent with the notion ongoing disputation is not encouraged.

18. On 20 November 2007, the father commenced these proceedings. 

19. Orders were made by consent by a Judicial Registrar on 30 January 2008. 

20. In December 2008, the father married his new wife Mrs Bond.

21. The proceedings came before me for the first day of a Div 12A hearing on 20 April 2009.  Before me the mother pressed an application to have determined as a threshold issue whether the father demonstrated a sufficient change in circumstances to warrant his application being permitted to proceed.  This is commonly known as the rule in Rice and Asplund (1979) FLC 90-725.

22. On 29 May 2009 Collier J determined the Rice and Asplund issue in the father’s favour and referred the proceedings to me for further hearing. 

23. On 2 July 2009 the parties settled a list of issues and I ordered a family report.  Ms W was the family consultant appointed to prepare the family report.  Ms W had previously met the parties when they participated in a Children’s and Parents Issues Assessment on 2 May 2008. 

24. The family consultant interviewed the parties, the father’s wife and the four grandparents on 4 September 2009.  She saw the child alone and observed her in various configurations with all of the adults.  In her report which is dated 16 September 2009, Ms W made the following recommendations: 

    50.It is recommended that the parties have shared parental responsibility for decisions regarding the subject child.

    51.It is recommended that the child live with the mother.

    52.It is recommended that the child spend time with the father on each alternate weekend from Friday until Monday and one night in the other week. It is recommended that when [the child] commences school that all changeovers occur to and from school.

    53.It is recommended that [the child] commence spending school holiday time with the father for three days in the October 2009 school holidays, and for three blocks of four days in the December 2009 school holidays.

    54.It is recommended that when [the child] commences school that she spend half of all school holidays with the father.

    55.It is recommended that [the child] spend a block period of at least three days with the father when her unborn sibling is born or returns home from hospital.

    56.Additional time is recommended on special occasions.

    57.It is recommended that the mother attend therapeutic counselling to assist her with the treatment and management of the anxiety that she is suffering.

25. In November 2009 the father’s son by Mrs Bond, J, was born. 

26. This hearing commenced on 14 December 2009.  At the commencement of the hearing the parties entered into a suite of orders which are set out later.

Consent orders made 16 March 2006

1. Consent Orders dated 16 March 2006 as follows:

   1.Primary Carer

   That the Applicant Mother [MS PEARCY], born […] 1976, (hereafter called [the mother]) is to be the primary carer of the child [M] born […] July 2004 (hereafter called [the child]) and [the child] is to reside with [the mother] with contact for the Respondent Father [MR BOND], born […] 1973 (hereafter called [the father]) as outlined in these consent orders.

   2.[The father’s]  Contact

   A:     [The father’s] contact until […] July 2007

   [The father] is to have contact with [the child] for the period until […] July 2007 as agreed between the parties and in the event that the parties cannot agree [the father] will have contact with [the child] as follows:

   i.Contact will be based on a four week schedule with the commencement of each week being Monday;

   ii.During week one [the father] will have contact with [the child] between nine o’clock on Saturday morning (9.00 am) until six o’clock on Sunday afternoon (6.00 pm);

   iii.During week two [the father] will have contact with [the child] between the hours of five-thirty on Wednesday afternoon (5.30 pm) and eight o’clock on Thursday morning (8.00 am);

   iv.During week three [the father] will have contact with [the child] between nine o’clock on Saturday morning (9.00 am) and six o’clock on Sunday afternoon (6.00 pm);

   v.During week four [the father] will have contact with [the child] at [the mother’s] discretion;  and

   vi.In addition to the contact as outlined in this clause 2(A) [the father] will have contact on [the child’s] birthday, [the father’s] birthday and Father’s Day as outlined in clause 3;  and

   vii.In addition to the contact as outlined in this clause 2(A) [the father] will have contact with [the child] during Christmas as outlined in clause 4.

   B:     [The father’s] contact from […] July 2007 until [the child] commences school (excluding inter alia preschool, play group and child care)

   [The father] is to have contact with [the child] for the period commencing […] July 2007 until [the child] commences school (excluding inter alia preschool, play group and child care) as agreed between the parties and in the event that the parties cannot agree [the father] will have contact with [the child] as follows:

   i.Contact will be based on a four week schedule with the commencement of each week being Monday;

   ii.During week one [the father] will have contact with [the child] between six o’clock on Friday afternoon (6.00 pm) until six o’clock on Sunday afternoon (6.00 pm);

   iii.During week two [the father] will have contact with [the child] between the hours of five-thirty on Wednesday afternoon (5.30 pm) and eight o’clock on Thursday morning (8.00 am);

   iv.During week three [the father] will have contact with [the child] between six o’clock on Friday afternoon (6.00 pm) and six o’clock on Sunday afternoon (6.00 pm);

   v.During week four [the father] will have contact with [the child] at [the mother’s] discretion;

   vi.In addition to the contact as outlined in this clause 2(B) [the father] will have contact on [the child’s] birthday, [the father’s] birthday and Father’s Day as outlined in clause 3;  and

   vii.In addition to the contact as outlined in this clause 2(B) [the father] will have contact with [the child] during Christmas as outlined in clause 4.

   C:     [The father] is to have contact with [the child] from when [the child] commences school as agreed between the parties and in the event that the parties cannot agree [the father] will have contact with [the child] as follows:

   i.Each alternate weekend from six o’clock on Friday afternoon (6.00 pm) until six o’clock on Sunday evening (6.00 pm);  and

   ii.The second half of all school holidays including pupil free days;

   iii.In addition to the contact as outlined in this clause 2(C) [the father] will have contact on [the child’s] birthday, [the father’s] birthday and Father’s Day as outlined in clause 3;  and

   iv.In addition to the contact as outlined in this clause 2(C) [the father] will have contact with [the child] during Christmas as outlined in clause 4.

   3.Birthdays, Father’s Day and Mother’s Day

   a.It is agreed that [the father] will have contact with [the child] on [the child’s] birthday and [the father’s] birthday, as agreed between the parties and in the event that the parties cannot agree that [the father] will have contact with [the child] for a period of no more than four (4) hours on both [the child’s] birthday and [the father’s] birthday;  and

   b.That [the father’s] contact will occur between the hours of ten o’clock in the morning (10.00 am) and four o’clock in the evening (4.00 pm) on [the child’s] birthday and [the father’s] birthday;  and

   c.It is agreed that [the father] will have contact with [the child] on Father’s Day between the hours of nine o’clock in the morning (9.00 am) and six o’clock in the evening (6.00 pm);  and

   d.In the event that [the father] has contact with [the child] on [the mother’s] birthday and [the child’s] birthday, [the mother] will have contact with [the child] as agreed between the parties and in the event that the parties cannot agree that [the mother] will have contact with [the child] for a period of no more than four (4) hours on both [the child’s] birthday and [the mother’s] birthday;  and

   e.That [the mother’s] contact will occur between the hours of ten o’clock in the morning (10.00 am) and four o’clock in the evening (4.00 pm) on [the child’s] birthday and [the mother’s] birthday;

   f.It is agreed that [the mother] will have contact with [the child] on Mother’s Day between the hours of nine o’clock in the morning (9.00 am) and six o’clock in the evening (6.00 pm).

   4.Christmas

   The parties will have contact with [the child] between the period commencing 14 December until 26 December as agreed between the parties and in the event that the parties cannot agree they will have contact as follows:

   a.That [the mother] will have contact in odd years and [the father] will have contact as follows in even years as follows:

   i.between three o’clock in the afternoon (4.00 pm) 24 December until three o’clock in the afternoon (3.00 pm) 25 December;

   b.That [the mother] will have contact in even years and [the father] will have contact as follows in odd years as follows:

   i.between three o’clock in the afternoon (3.00 pm) 25 December until three o’clock in the afternoon (3.00 pm) 26 December.

   5.Handover

   Handover of [the child] will take place at a location as agreed between the parties and in the event that the parties cannot agree, handover will take place as follows:

   a.When the handover is from [the mother] to [the father], [the father] will be responsible for the collection of [the child] and such collection will take place at [the mother’s] residence;

   b.When the handover is from [the father] to [the mother], [the mother] will be responsible for the collection of [the child] and such collection will take place at [the father’s] residence.

   Orders made 30 January 2008

   IT IS ORDERED:

   1.By consent the orders made on 6 March 2006 be varied to provide that the conclusion of time in the second week of the four week schedule spent by the child with the father referred in paragraph 2Aiii of that document is amended to 9.00 am Thursday and the provision for time in the fourth week of that schedule under the terms of those orders is amended to 5.30 pm Wednesday to 9.00 am Thursday.

   2.By consent orders are made in terms of paragraphs 2, 3, 6, 7 and 8 of the document titled “Interim Orders” as set out hereunder:

   “2.     That the parents have equal shared parental responsibility for the child, [M] born on […] July 2004 (the child).

   3.     That the parties consult and make a genuine effort to come to a joint decision in the event that long term issues arise in relation to the child concerning:

   (a)the child’s education;

   (b)the child’s religious upbringing;

   (c)the child’s health;

   (d)the child’s name;

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

   6.     That the mother and father each:

   (a)Give all consents and authorities to allow the school of the child to provide to each parent any school photographs, reports, notices or newsletters specific to the child.

   (b)Forthwith notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and provide the name of the hospital, treating medical practitioner and/or medical facility that provided the medical treatment to the child.

   (c)Give all consents and authorities to any treating medical practitioner to provide any medical information for the child to the other parent.

   (d)Not prevent or hinder each party from attending at the child’s school for any functions relating to the child.

   (e)Not denigrate the other or the other party’s family or the other party’s associates to the child or in the presence of the child, nor allow any third party to denigrate such persons to the child or within the presence of the child.

   7.     The parties are restrained from using any name other than [M Bond] for the female child of the parties born on […] July 2004 called in the birth registration [M Bond].

   8.     That within seven days of the date of these orders the mother do all things necessary to ensure that the child’s treating medical practitioners list the child’s name as [M Bond].

   IT IS NOTED

   3.There will be an application that the child be represented.

   IT IS FURTHER ORDERED

   4.Leave is granted to the parties to restore the matter to the list on giving 7 days notice to each other and to the Court for the purposes of an order being made in relation to the appointment of an Independent Children’s Lawyer closer to the commencement of the Less Adversarial Trial.

   Orders dated 14 December 2009[1]

   [1] Exhibit ‘E’

   By consent it is ordered:       

   1.    That [the father] and [the mother] shall have equal shared responsibility of the child [M] born […] July 2004.

   2.    That the child spend half of all school holidays with the father being from 5.00 pm on 25 December 2009 until 5.00 pm on 14 January 2010 and thereafter in even numbered years and the second half in odd numbered years.

   3.    That from the date of these orders until the end of the first term of school 2010 the child spend each alternate Wednesday from the end of school on the Wednesday to the start of school on Thursdays.

   4.    The child’s period of living with the parents is suspended from 5.00 pm Christmas Eve until 3.00 pm Boxing Day each year and the child to spend time with each of the parents as follows:

   (b)With the mother from 5.00 pm Christmas Eve until 3.00 pm Christmas Day in even numbered years and from 3.00 pm Christmas Day until 3.00 pm Boxing Day in odd numbered years.

   (c)With the father from 5.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 3.00 pm Boxing Day in odd numbered years.

   5.The child’s period of living with the parent with whom they are living on the child’s birthday be suspended from the conclusion of school on that day until 6.00 pm on a school day and from 12.00 noon to 6.00 pm if a weekend day and the child live with the other parent during these times.

   6.That 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 5.00 pm on the day preceding Father’s Day until 5.00 pm on Father’s Day and the child live with the father during that time.

   7.That 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 from 5.00 pm on the day preceding Mother’s Day until 5.00 pm on Mother’s Day and the child live with the mother during that time.

   8.That 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.

   9.Each party is at liberty to obtain all relevant medical records and consult the child’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

   10.Subject to any direction by the relevant school each party is at liberty to attend the child’s school functions and obtain all details from the child’s school including reports, school photos and these orders are sufficient authority for that purpose.

   11.For the purposes of implementing the changeovers they are to occur at the child’s school if it is a school day and if not a school day then as agreed between the parties but failing agreement the parent with whom the child is not living shall collect the child from the other parent’s home.

   12.Both parties will refrain from denigrating the other party’s family whilst [the child] is in their care and will do all things reasonably possible to deter any other person from doing so.

   13.That the child be known as [M Bond].

   AND IT IS NOTED:

   14.Both parties agree that they will discourage [the child] from using any vocabulary in relation to parental status, toward any other person, other than their natural parents.

   15.That the parties have agreed that [the child] will attend [S] Primary School and both parties share equally the cost of [the child’s] education and associated sporting activities.

The general law in parenting cases

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);  and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement   necessary:

   (i)   to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)  to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).  Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as being of particular importance. 

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3).   Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities:      s 60CC(4).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and that such an order will not expose a person to an unacceptable risk of family violence: s 60CG.  Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important.  If the Court is satisfied that a child’s parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA).  In the context of s 65DAA 'consider' means to consider positively the making of an order.  Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)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

   (2)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

   (3)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.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above.  Similarly, where the Court has decided against ordering that the parents have equal shared parental responsibility, s 65DAA considerations do not apply.  

The mother’s circumstances

1. The mother lives with the child at Y Street.  The mother’s parents are the registered proprietors and it is where the mother and child have lived since August 2005.  The mother is very close to her parents and they provide her with strong practical and personal support.  The mother’s parents are content for the mother to live indefinitely in their Y Street  property which she will do.  The home provides the mother and child with a comfortable standard of accommodation.

2. The mother is a community service representative.  She works five days a week from 10.00 am to 3.00 pm.  In addition, one Saturday each month the mother is required to work.  She is able to organise her working hours on weekends so that they coincide with periods the child is with the father.  At the time of the hearing, the child attended preschool three days each week and day care one day per week.  The mother was able to take the child to and from preschool and day care.  Most afternoons the mother took the child to her partner’s home for a few hours.  The mother had arranged with her employer to be able to take the child to and from school and, when she is not with the father, she is able to care for her outside of school hours.  Should she ever need to, the mother was able to call upon her parents to baby sit for her.  The child has significant contact with her maternal grandparents to whom she is very close.  The mother is close to her parents and they happily provide her with practical and financial support.     

3. Four and a half years ago the mother commenced a relationship with Mr H, who is her current partner.  Mr H is 34 years old and works fulltime as a tradesman.  The parties agree the child enjoys a happy relationship with Mr H, which is corroborated in part by the child’s reference to him in her discussions with the family consultant.  Mr H has spoken with the mother about his desire that they live together.  Although the mother is committed to her relationship with Mr H and he stays on average two nights a week at her home, she is anxious about them living together. Her anxiety emanates from her unhappiness about the way she feels the father mistreated her when they cohabitated.  Although Mr H did not give evidence and notwithstanding the mother’s anxiety, her regard for Mr H is such that there is a reasonable likelihood their relationship will progress in the manner hoped for by Mr H.

4. During cohabitation each of the parties used drugs.  The mother used cannabis reasonably regularly and on occasion amphetamines.  It was her evidence she stopped using drugs when she discovered she was pregnant.  Although his evidence was unresponsive to the question asked, the father said on a number of occasions the mother continued to use cannabis during the pregnancy until she was at least 28 weeks.  According to the father, this was the only reason the parties argued and was the catalyst for their first separation.  The mother was a generally impressive witness who is focused on being the best parent she is capable of being.  It would be inconsistent with her demonstrably competent parenting following upon the child’s birth for her to have been as reckless with the child’s future by using drugs when pregnant.  In any event whatever the situation may have been in the past, the mother’s impeccable care of this child, combined with her presentation and evidence, revealed that there is little more than a theoretical risk this aberrant behaviour may resurface.

5. It was the mother’s desire that the child attends a Catholic School.  She nominated N School as her preferred option.  The father preferred the child to receive a State public school education.  By the time the parties agreed the child would attend N School, there were no places available. It is agreed the child will attend S Catholic School, which school is located close to each of the parties’ homes, albeit slightly closer to where the father resides.

6. The family consultant reported: 

   The mother presented as highly anxious and distressed throughout the interview.  She articulated that she constantly thinks about the parenting arrangements for [the child], is anxious about court proceedings and worries about whether [the child] will be safe in the care of the father.  She said that this results in her crying herself to sleep most nights.

7. The family consultant assessed the mother as being genuinely distressed and anxious.  It was her opinion the mother would benefit from therapeutic counselling to assist her to deal with her anxiety and distress.  After she read the family report, the mother spoke with her doctor who referred her to a local counselling organisation.  The mother has registered with this organisation and is on a waiting list.  It is not possible to determine when counselling will commence.  Having regard to the mother’s commitment to the child to which I have earlier made reference, I am satisfied the mother is motivated to embrace the benefits which will be available to her from counselling.  I am bolstered in this view by the mother’s attendance at a post separation parenting program and her evidence that, in attempting to achieve effective communication with the father, she adopted strategies learned in that course.

The father’s circumstances

1. The father is 37 years old.  He resides with his wife, Mrs Bond and their son J. J is the child’s only sibling.  They live at R Street.  This is a comfortable three bedroom home which the father and his wife own.  The home has been renovated and the yard is fully fenced.  The child has her own room.  The home provides comfortable accommodation and would easily accommodate the child residing there week about.  The father’s home is about a 10 minutes walk or two minutes drive from the mother’s home.

2. Since August 2009, the father has worked as a sales agent.  He is an independent contractor paid on a commission basis.  This is a fulltime position with the father usually working from 9.00 am to 5.00 pm Monday to Friday.  Although the office is not open on a Saturday morning, attends to work on Saturdays.  The firm’s principal sees herself as a family friendly employer.  She and the father have implemented an arrangement where they alternate Saturdays, so that the effect is each alternate weekend one of them need not work.  In the event he needs to, the firm’s principal is willing for the father to adjust his commencement or finishing times to care for his children.

3. Mrs Bond is a surgeon.  She has a fulltime position in her chosen field in the local area.  She had made arrangements with her employer to have six months maternity leave during which she would not work at all.  In addition, she had arranged to return to work part-time with these arrangements to be adjusted in accordance with her child care responsibilities.  Thus, between them, the father and his wife are confident that outside of school hours, they could make appropriate arrangements for one or other of them to supervise the child.  If the situation arose where a baby sitter was required, the father’s parents would happily step in. 

4. The father’s parents, the paternal grandparents, are both retired.  Since the child’s birth, they have been keenly interested in her welfare and while the parties cohabitated, they baby sat the child with reasonable regularity.  On weekends when the child is with the father, the paternal grandparents spend at least some time with her, either at the father’s home, out for breakfast or at their home.  On alternate Wednesday evenings there is a well established practise of them taking the evening meal at the father’s home.  About every six weeks or so, the father’s sister visits.  As far as possible she ensures these coincide with weekends the child is with the father.  She then joins in with the paternal grandparents in family activities with the child, the father and his family. 

5. The paternal grandmother has a cooperative relationship with the mother.  It is her opinion the mother “is a wonderful mother” to the child and a nice person.  The paternal grandmother feels able to talk openly and freely about the child with the mother and she has been able to make arrangements with the mother for her and the paternal grandfather to speak to the child and take her out.  For example, after they have returned from holidays and have gifts for their grand-daughter.  The paternal grandfather shares his wife’s complimentary views about the mother and her parenting capacity. 

6. The paternal grandparents support their son’s application to have equal time with the child.  From their perspective, the time she has with him passes “in a flash”.  Both wish to be active grandparents and believe it is important for the child that she has the opportunity to spend more time with her father and develop a strong relationship with her new brother. They are equally complimentary about their son’s parenting capacity and are proud of the person he has become.

Section 60CC(2) considerations

1. Section 60CC(2) comprises the primary considerations, subject to subsection (5), in determining a child’s best interests.  Section 60CC(2)(a) concerns the benefits to the child of having a meaningful relationship with both of the child’s parents.  In Mazorski v Albright (2007) FamLR 516 (per Brown J), her Honour described the word as meaning a “relationship or a meaningful involvement … which is important, significant and valuable to the child”. The Full Court in McCall & Clark (2009) FLC 93-405 accepted as appropriate these remarks. In McCall & Clark their Honours also said that the preferred approach to s 60CC(2)(a) is for the Court to consider the prospective benefit to the child of a meaningful relationship.  It is not in dispute that the child has lovely relationships with her parents.  Whichever outcome is ordered, the child will continue to have each of her parents meaningfully involved in her life.  She has a strong sense of the importance to her of her parents and clearly identifies the mother as such and her father in that role.  No challenge is made by either parent to the notion the child could only benefit from continuing her relationship with both parents in a real way.  With this approach I agree.

2. Section 60CC(2)(b) concerns the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence.  The mother gave evidence about incidents in which she said the father was abusive and threatening.  These incidents occurred prior to the 2006 consent orders.  It will be recalled, the mother agreed the child could spend time with the father unsupervised, including overnight.  Although she was and is terribly anxious about how the child would fare with the father, particularly in terms of exposure to aggressive outbursts, happily her fears have not been realised.  During the hearing, there was considerable exploration about the mother’s allegations of relationship abuse and violence.  While, in the context of post separation events, this might have appeared to have become irrelevant in the risk assessment exercise, it was the father’s position the mother’s refusal to give him time over and above that which was provided for in the consent orders, was indicative of her being unwilling to facilitate and encourage the child’s relationship with him.  In addition, it was asserted on the father’s behalf, that for strategic legal purposes the mother refused to acknowledge the parties were able to communicate effectively and that her assertions to the contrary were unfounded.  In response, counsel for the mother submitted it was important for the Court to understand this aspect of the parties’ history so as to appreciate why the mother remained anxious about dealing with the father and, that they were able to communicate even at a superficial level, was, in context, the result of considerable effort by her.  Far from being an unwilling supporter of the child’s relationship with the father, it was submitted the mother had put to one side, as best she could, not insignificant aggression directed towards her by the father.  Thus, I ruled as admissible the mother’s evidence in relation to family violence.

3. In relation to s 60CC(2)(b) considerations, it was submitted by the father that the child being aware the mother is sad whilst she is with the father, may be emotionally detrimental to the psychological welfare of the child.  As I understood the submission, this apparently had a nexus to the need to protect the child from “abuse, neglect or family violence”.  When regard is had to the statutory definitions of abuse and family violence, it will be immediately apparent that the conduct by the mother referred to has no relevance to the subsection.  It is a matter, however, which will be dealt with later.

1. When the mother entered into the 2006, 2008 and 2009 consent orders, she was on each occasion legally represented.  I infer that on each occasion the mother reflected upon whether her past experiences with the father suggested to her the child may be exposed to verbal or physical aggression.  On each occasion she decided in favour of unsupervised time and I infer she reached the conclusion the father was unlikely to behave in an abusive manner to, or in the child’s presence.  In the four and a half years or so of unsupervised time, there has been no complaint by the child or anything observed by the mother which would suggest her conclusion was erroneous.  Indeed, the evidence points in the opposite direction.  There has been no violence in the father’s relationship with his wife and drug use and heavy consumption of alcohol by him are something of the past.  There was a nexus between the father’s consumption of drugs and/or alcohol to excess and his aggression.  It is my assessment, that perhaps as a combination of greater maturity, being in a relationship which he values, when combined with him no longer using drugs or alcohol inappropriately, there is little risk the child would be exposed to abuse or family violence in the father’s care.  Notwithstanding these findings, it will be necessary to consider this matter further in order to appreciate the parties’ relationship and their ability to communicate with each other. 

Section 60CC(3) considerations

1. Subsection (a) concerns the child’s views and factors relevant to the weight given to them.  The family consultant explored this issue with the child.  When the family consultant interviewed her, the child was five years and two months.  The family consultant reported:

   18.[The child] identified the key people in her family as ‘mumma, dada, poppy (maternal), [Mrs Bond] (step-mother), nanny (maternal), nanny (paternal) and poppy (paternal).’  Near to the end of the interview the child spoke about ‘[Mr H]’, the mother’s partner.

   19.The child indicated that she enjoyed spending time with the father.  She was unclear about any specific schedule but did state that she spent ‘one night and then ‘two nights’ when she has ‘sleepovers.’

   20.The child reported feeling excited when she knows she is about to go to the father’s house.  She said that she has ‘lots of toys and [her stepmother] having a baby.’  She said that the new baby was going to be ‘good’ and that she was going to be a big sister and teach the baby how to walk and how to talk. 

   21.The child stated that she would like to spend ‘the same bits of time with daddy as now.’  She said that she likes ‘lots of sleepovers at daddy’s, but I can’t because if I have too many sleepovers my mummy will miss me.’  The child picked a bear card to indicate that the mother felt ‘sad’ when the child was with the father.

2. The mother is sad and anxious when the child is with the father.  Often, she cries herself to sleep.  This is a reflection of her concern for the child and, to a lesser extent, she misses her.  It had not been the mother’s intention to cause the child to feel concerned that her mother missed her, but rather as an expression of the mother’s love for her daughter.  Although the mother did not intend to, or when the child was required to discuss these matters, clearly her mother’s sadness influenced the child’s thinking.  In any event, at her age, the child does not have the life experience or maturity to have any views expressed by her as to the ultimate outcome afforded significant weight.  It is, however, appropriate to recognise that the child wants to maintain her relationships with both of her parents. 

3. Section 60CC(3)(b) concerns the nature of the child’s relationships with her parents and other significant people, including grandparents.  I have already made findings in relation to this matter when discussing s 60CC(2)(a) considerations.  This is a matter investigated by the family consultant. 

4. In May 2008 the family consultant observed the child with her parents.  She observed the child formally with the father and informally with the mother.  According to the family consultant: 

   The child presented as a happy and talkative young person.  No developmental concerns were noted throughout the assessment process.  All parties agree that the child has strong and positive relationships with both the mother and the father.  The observations confirmed the child enjoys a warm and mutually loving relationship with both parents.  Both parents reported that the child is currently managing well with the existing arrangement and agreed that she is a well adjusted, robust and resilient child who loves spending time with both parents.

5. When the family consultant completed her report some 16 months later, she conducted formal observation sessions.  In relation to these, she said:

   23.The mother agreed that the child has a positive relationship with the father and this was supported by the observation session of the child with the father and the step-mother.  Both were very warm and involved with the child.  The child presented as very relaxed in their company and no concerns were noted in the session.

   24.The father agreed that the child has a positive relationship with the mother and this was supported by the observation session of the child with the mother.  The mother easily engaged in structured play with the child and both appeared to be very comfortable in the presence of the other.  No concerns were noted in the session.

6. The family consultant said: 

   The child’s well adjusted presentation in the context of parental separation suggests that her primary caregiver (the mother) has provided a high level of appropriate physical and emotional care to the child.  It also suggests that all of the involved adults have been able to prioritise the child’s needs for positive relationships with all of her nuclear and extended family members over the conflict between them.

7. Although the child’s relationships with her parents are loving and strong, this does not mean their relationships are the same.  For the first three years of the child’s life, the mother basically cared for her full time.  In saying this, I have not overlooked she had some paid work, but comparatively this was limited.  An important point of difference is that from birth, the mother has been far more involved in the child’s care than the father.  This situation was reinforced by the arrangement which she put in place for the child’s care after they separated.  The father said his consent to these arrangements was in effect given under duress; that is, he conceded arrangements so that he could have time with the child.  I do not accept he conceded arrangements which he believed were inappropriate or unsatisfactory for the child.  Nonetheless, the reality is that from when the child was about 13 months, she has spent much more time with the mother than she has with the father.  These are important years for a child’s development and have resulted in the child being strongly and, as the family consultant said, primarily attached to the mother.  This is a relationship which is fundamentally important to the child’s wellbeing and happiness.  While the child’s relationship with the father is also important to her happiness, identity and self-esteem, it does not have the same degree of centrality to the child’s overall wellbeing as her relationship with the mother.  These are findings which warrant considerable weight and will be particularly relevant the extent to which a reduction in the amount of time the child spends with the mother may be contraindicated. 

8. Irrespective of which outcome is ordered, the child’s relationship with her grandparents is assured.   As the child matured, the existing orders provided for a gradual increase in the amount of time she spends with the father and, thus, her paternal grandparents.  It is the mother’s evidence, which the Court accepts, that she is keen for the paternal grandparents to be involved in the child’s activities and, to the extent the paternal grandparents were, for example, concerned they may not participate in “grandparent’s days” their concerns are unwarranted.  The mother has demonstrated her willingness to facilitate time spent by the paternal grandparents with the child without being ordered to.  The mother will continue this approach. 

9. The child was excited about her brother’s birth.  Before J was born she gave him a nickname and was thoroughly immersed in the excitement of his impending arrival.  She looked forward to being a big sister and teaching him all that she knew.  A clear advantage to the father’s proposal is that the more time she and J have together the easier it will be for them to develop a strong sibling bond and identity.  Living in different homes will present real challenges for the children and marks out another important point of difference, namely they have different mothers.  On both parties’ applications, it is the reality of the children’s lives never to live together all of the time.  From the outset, the children will be required to accept that their sibling relationship is structured around significantly separate lives.  It is established from the outset on the basis they do not live together.  The mother’s proposal will result in more frequent separations and, other than during school holidays, will not see the children as deeply immersed in each other’s lives as would be achieved by the father’s proposal.  However, the children would still spend enough time together to build good sibling relationships.  The child’s relationship with the father’s wife has been established entirely through periods of contact with the child.  This shows that strong relationships can be established for this child, even with people she has not lived with for even half the time.  The mother, father and his wife are all likely to support the siblings’ relationship, with the father and his wife particularly able to ensure it is a rich experience for both children.

10. By s 60CC(3)(c) I am required to consider 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.  It is the father’s case the mother has not facilitated or encouraged his relationship with the child.  He correctly points out that the child has never spent any “block time” with him and that despite his requests, the mother agree he take the child on holidays, she has refused.  The father asked once, in 2008, to be able to take the child for a week long holiday to Noosa with his family.  After the mother agreed the father changed his mind and did not take the child.  Responsibility for the child’s non attendance at this holiday rests with him and not the mother.  The father gave evidence about arrangements for the October 2009 long weekend, when he and his wife planned to attend a wedding at Port Macquarie.  By the orders the child would be with the father from Friday afternoon until Sunday afternoon.  He wanted to stay at Port Macquarie an extra day.  About two weeks before, he telephoned the mother and asked her to swap weekends.  After she agreed, the father suggested that he have the child for a third day.  At the next changeover, the mother said she would swap weekends but did not agree to facilitate an extra day.  While it would have been reasonable for the mother to agree to the father’s request for an additional day, her response was not unreasonable.  The father did not lose time with the child and the mother was flexible enough for him to enjoy the wedding and spend the time provided for under the orders on another occasion. 

11. After the family report was released, through his solicitors the father sought three days with the child during the October 2009 school holidays.  His approach was consistent with the mother’s response which provided the father have time with the child during those holidays.  Unfortunately, the father’s solicitor’s letter was not brought to the mother’s attention.  The father spoke with the mother on 7 October 2009 and asked if he could have the child a couple of days later.  This was outside the parameters of the orders.  The mother agreed.  This event is revealing.  It shows the parties’ communication is so superficial they were unable to recognise they were agreed the child should spend a week of those holidays with the father.  Although it appeared the father had not seen the mother’s amended response, had the parties been able to discuss the child’s arrangements in appropriate depth they would have discovered both of them thought the child should have additional time with the father during those holidays.  Counsel for the father submitted that the Court would not take this into account, his point being there had clearly been a failure between solicitors to inform the parties of the contents of correspondence and documents.  There is no doubt there was a breakdown in communication from the solicitors.  However, in my view, if the parties were able to communicate effectively about the child, these arrangements would have been made notwithstanding the communication lapse between their lawyers.  

12. Counsel for the father submitted the Court would be concerned the mother did not facilitate as much additional time when J was born as was recommended by the family consultant.  However, without an order the mother facilitated the additional time that the father sought.  This was for about four hours on the Saturday following J’s birth.  No criticism of her actions in relation to this is warranted.    

13. As I understood the argument, it was the father’s contention that because the mother failed to agree to his requests for more time with the child than was provided for in the orders, this demonstrated her unwillingness to facilitate and promote his relationship with the child.  However, the orders were carefully crafted and designed to provide an incremental increase in the amount of time the child had with the father, consistent with her age and stage of development.  Whilst minds may disagree about whether the pace at which the father’s time with the child increased was slow or fast, the structure provided for in the orders could not be criticised as age inappropriate.  Nor is it reasonable for the father who, when legally advised, freely entered into consent arrangements to then complain because the mother complied with their agreement.

14. I was more troubled by the mother’s failure to facilitate requested contact with the child during week four of the four week cycle.  The orders made provision for the father to have contact “during week 4 … at the mother’s discretion”.  The mother refused all requests by the father for contact during week four.  In total, the father asked for additional week four times on 6-10 occasions.    Although the order was unenforceable, the spirit of it was clear, and it was reasonable for the father to anticipate reasonable requests by him would be acknowledged appropriately by the mother.  The mother said she was generally opposed to additional time during the fourth week unless it was a special occasion.  Additional time merely for the sake of additional time she considered too disruptive for the child and thus she refused the father’s requests.  Her failure to facilitate this additional time demonstrated poor judgment on her part.  This issue was rectified by consent orders on 30 January 2008, which provided the father would spend time with the child during the fourth week from 5.30 pm Wednesday to 9.00 am on Thursday.  With this order the mother complied.

15. The mother said she has sought to facilitate and encourage the child’s relationship with the father.  She points out the orders provided for frequent contact between the child and father, including on special occasions.  With these orders the mother complied.  The orders were made by consent with the mother quickly entering into an enforceable arrangement for the child to spend a not insignificant amount of time with the father.  It was not necessary for him to force the issue through an application to a Court.  The agreement which was reflected in the orders is indicative of the mother having a positive attitude to the child’s relationship with the father from the outset.  This interpretation is consistent with her compliance with the orders. 

16. The child was very young when the parties separated.  Thereafter she has lived primarily with the mother and, given the primacy and strength of the child’s attachment to the mother, had the mother been so motivated, she was in a strong position to undermine the child’s relationship with the father.  That the child has such a good relationship with the father is evidence not only of his commitment to it but also the mother’s.  Clearly the child believes the mother values this relationship.  Although the parties are not friends, the child told the family consultant they are “good friends”.  This view by the child suggests strongly the mother has not said unpleasant things about the father to the child.  Because of the child’s young age at separation the positive regard she has for the father and their lovely relationship strongly supports the inference that in the mother’s care the child is exposed to unequivocal and positive reinforcement of his importance in her life.  These are findings to which I attach significant weight.     

17. The father said he was concerned at changeover the mother says things to the child like, “Only two sleeps until you are home again” or, on a Wednesday, “Only one sleep until you are home again” or, “See you tomorrow”.  The mother agreed she spoke in this manner, which she thought were no more than age appropriate descriptions for the amount of time the child would be away from her.  These were intended to be words of comfort and were not designed to somehow subtly communicate to the child some form of concern about arrangements in the father’s care.  Whilst adults might interpret the opening word “only” as a loaded qualification, there was no evidence the child picked up a subtly critical message about contact with her father.  While others may have used different words when parting, I do not agree the words used by the mother are indicative of unwillingness on her part to facilitate the child’s relationship with the father.

18. I am strongly satisfied the mother has and will continue to facilitate a close and continuing relationship between the child and the father.  To the extent it was argued the Court would need to expand the child’s time with the father in a significant manner to offset the potential for the mother to undermine their relationship, the weight of evidence is against the argument.  The father is similarly willing and able to support a close ongoing relationship for the child with the mother.  While he seeks to reduce the time the child would have with the mother he has sought to strike what he considers is the right balance for the child to enjoy strong relationships with each of her parents.  

19. Section 60CC(3)(d) is one of the important factors in these proceedings.  There is a strong connection between this and s 60CC(3)(f).  This subsection concerns the likely effect of any change in the child’s circumstances, including separation from parents or any other person with whom the child had been living.  Because of the structure of the 2006 orders, change is inevitable.  The real issue is the pace of change and the effect on the child were a more rapid and extensive approach adopted than is provided for by the current orders.  The family consultant strongly recommended against changes to the child’s routine during her kindergarten year; in 2010.  She said it was important to see how the child managed the transition to school, which she said would be a period of massive change and then assess whether she would be able to cope with more change.  She did not support the father’s proposal for significant changes to the amount of time she spent with him in 2010.  If the child managed the transition to kindergarten well, and the Court accepted the parental relationship and their ability to communicate had improved since she assessed the family, by term two 2010 the family consultant said the child might be ready for three day alternate weekends during term.  It is clear, the family consultant was strongly of the opinion this is a high conflict parental relationship in relation to which the parents had shown themselves only able to communicate at a superficial level.  In her view there was no meaningful cooperation or communication between the parties and she gave numerous examples of how, for a long time, the parties had been in conflict about the child and unable to agree on parenting arrangements.  It was her view the situation would be even more concerning, if the Court accepted the father lacked empathy in relation to the mother’s anxiety about the situation.  As to the latter, I am strongly satisfied the father has very little empathy for the mother about this. 

1. The family consultant said an equal time arrangement was contra-indicated.  In her opinion it is in the child’s best interests to live primarily with the mother and spend substantial and significant time with the father.  In order to achieve this, she recommended:

   Only a slight change in parenting arrangements, perhaps an extra night and school holiday time.  These arrangements are slight changes and are consistent with [the child’s] older age and accordingly the effect on the child of such a change in her circumstances would appear to be minimal. 

2. I accept the mother’s evidence that post separation the parties have been only able to communicate about the child at a superficial level.  There was considerable emphasis placed upon the parties being civil when they spoke and having been able to meet for coffee to discuss parenting issues.  While they are civil their conversations last for no more than about 30 seconds on average and they have met for coffee twice in four years.  The coffee meetings were unproductive.  Merely because the parties are civil and abide by social norms in relation to how they behave does not mean they communicate effectively or that their relationship is not highly conflicted.  My point is civility does not equate to the absence of conflict.    As I understood the family consultant’s evidence, against a background of high parental conflict the Court would be cautious about imposing further change on the child unless the Court was satisfied the parents could genuinely cooperate to help the child adjust.  If they were assessed as being unable to cooperate they would be unlikely to jointly soothe the child’s transition and minimise the extent she might feel she was living two disparate lives.  Regrettably, I did not see the type of improvement to the parties’ parental relationship which the family consultant considered a necessary precursor to increase the child’s time with the father during term in her first year at school.

3. I was also particularly concerned about how the child would adapt to a significant reduction in the amount of time she has with her primary carer.  There was agreement the child would commence block periods during school holidays with the father and in 2011 increase the weekend time with him to a third night.  This would mean the child would not see her mother from Friday morning until Monday afternoon each alternate weekend.  For this child this is a significant period away from the parent to whom she is most closely connected and upon whom she is reliant in so many ways.  While the child and mother’s particularly strong relationship would be unlikely to diminish if their time together was reduced as the father proposed, the child would be unhappy and troubled by her reduced time with the mother.  To a considerable extent this happy child’s lovely relationships with the father and other close relatives emanates from the contentment and security she derives from her relationship with the mother.  Were that relationship disturbed unduly, including too great a separation from the mother, I am satisfied the child’s unhappiness would spill over in to all facets of her life.  This would include the potential to diminish the pleasure she feels in her other relationships.  These findings warrant reasonable weight and weigh against the father’s primary application.     

4. Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent and whether this will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.  The parties live within walking distance of each other and whatever parenting arrangements are considered to be in the child’s best interest are able to be implemented without issues of expense or practical difficulty being an impediment. 

5. Section 60CC(3)(f) concerns the parties’ capacity to provide for the children’s needs, including their emotional and intellectual needs.  To an extent this factor is connected to the nature of the child’s relationship with her parents.  The family consultant emphasised the importance for this child emotionally of being able to continue to enjoy in a real way her primary attachment to her primary carer, that is, the mother.  Putting to one side issues of parental conflict, the gravamen of her evidence was that this emotionally content child would be emotionally troubled if her time with the mother was significantly reduced.  This was not an issue about the father’s parenting capacity, nor connected to any parenting deficits he may have.  Rather, it is a function of how the parties structured the child’s parenting arrangements and relationships.  From the child’s emotional perspective, for those needs to be met, it is important she continues strong relationships with both parents, which need to be configured so as to maintain the emotional connectedness and reliance she has upon the mother.  These are findings to which I attach considerable weight.

6. In an earlier application, it had been the father’s proposal the child would commence week about time without any period of transition.  This raised questions about his level of understanding of the child’s emotional needs as well as his capacity to consider the situation from her perspective.  I was similarly concerned about his inability to accept the family consultant’s evidence about how massive an adjustment starting school would be and that further significant changes in the child’s life would be unwise.  He was unable to examine the situation from the perspective of giving the child the best opportunity to settle into school, with his motivation being his determination to have equal time as quickly as he thought possible.  Although the father is a parent with many strengths, I have some disquiet about whether he has an intuitive appreciation of the child’s emotional needs.  I have no similar concerns about the mother.   

7. Both parties impressed as being intellectually quick and able to manage the child’s intellectual and educational needs.

8. There are no further s 60CC(3)(g) factors which require consideration.

9. Aboriginal and Torres Strait Islander issues do not arise.

10. Section 60CC(3)(i) concerns the parent’s attitude to the child and parental responsibility.  I have already made findings which touch upon this issue.  Prior to separation and with the 2006 consent orders, the parties implemented an arrangement whereby primary parental responsibility, in terms of the child’s day to day care, was undertaken by the mother.  This was an effective and appropriate exercise by the father of his parental obligations.  To varying degrees, the parties included other family members in the child’s care.  This was undertaken to an appropriate extent and not in a manner which could be classified as an abrogation of their parental responsibilities.  Both parties impressed me as motivated to appropriately meeting their obligations as parents into the future.

11. Sections 6CC(3)(j) and (k) concern family violence and whether there is a family violence order.  An interim Apprehended Violence Order was made for the mother’s protection not long after the parties separated.  It was the father’s contention the mother misled police and the Local Court in relation to her Apprehended Violence Order application.  This was done, it was submitted, for forensic advantage in relation to parenting matters.  As part of this submission reliance was placed upon the mother’s failure to include in the statement to police details of contact between the parties after 24 August 2005.  In the Apprehended Violence Order application sought by police, reliance was placed upon the mother’s evidence of an incident which the mother said occurred on 24 August 2005.  On this day, the father arrived at the mother’s Y Street home at about 2.00 pm.  She heard a loud knock on the door.  When the mother looked out of the window, she saw the father who shouted, “Let me in, let me in, just let me in.”  Based on her prior experience with the father, the mother assessed he was very angry.  She took the child and hid in her bedroom.  She saw the father walk from the front of the house to the rear where she heard him try to open the rear door.  She could hear him calling out, “Let me in, let me in”.  The father came around to her bedroom window, by which time he was screaming to be let in.  At this point the mother dialled 000.  The father did not know she had telephoned the police and left.  When police arrived about 15 minutes later, the father coincidentally turned up.  Police interviewed the mother and father separately and then left.

12. The following day the mother and child went to stay with a friend of the mother’s.  They returned to the Y Street home on 2 September 2005.  Following a discussion between the parties, it was agreed the father would move out of their family home at L Street and the mother and child would return.  This occurred and the mother and child moved back into L Street on 3 September 2005.  About one week later the mother visited friends for the weekend.  When she returned, the father was in residence at L Street.  The mother moved back into Y Street. 

13. The mother’s police statement which is dated 28 October 2005, also referred to frequent telephone calls she was receiving from the father, on average three a day.  These related to his desire to see the child.  She went on to relate an incident on 28 October 2005.  On that day the father arrived, uninvited, at the mother’s home at about 9.00 am.  The mother said the father shook the front security door and banged on the front door.  His tone of voice frightened her and he shouted, “You gutless bastards”.  This lasted for about five minutes.  As well as the child, the mother’s mother was present. 

14. The point which was made, particularly about her 28 October 2005 statement, was that the mother did not include details of contact between her and the father during the intervening period.  In September 2005, the parties met for coffee, went to the park and on a number of occasions the father visited the mother at home.  One day was spent by him with her and the child in the garden.  All of these related to the father spending time with the child, which the mother insisted would be supervised by her.  The point being, the mother’s willingness to supervise the child’s contact with the father, not only in public places but also at home, was inconsistent with her claim she was afraid of him.  It follows, if the mother had been honest with police and told them about this style of contact with the father, they would have had a better picture of the true state of the situation between the parties and it would have been unlikely police would have assisted the mother to obtain an Apprehended Violence Order, or that an interim order would have been made. 

15. The mother said when police interviewed her, their focus was upon incidents which caused her to be fearful.  They did not ask for a complete run down on the parties’ post separation contact.  While I accept the mother accurately recounted her dealings with police, she is not unintelligent and should have provided police with a more accurate statement of her post separation contact with the father.  Thus, I agree, that by omission the information the mother gave police and the Local Court was somewhat misleading.  However, I do not agree that by supervising contact between the child and the father, telling him she loved him and inviting him to her home, that this meant the mother was not fearful of the father.  Clearly her attitude and feelings for him were confused with her affection for him, also coloured by fear when he was angered.  In my view, the mother struggled to find the proper balance between conflicting obligations and feelings.  She was uncertain about whether to continue her relationship with the father and sought to maintain the child’s contact with him.  She also wanted to protect herself from his verbally aggressive behaviour and episodic demonstrations of his anger.  While others more experienced in these issues might have advised the mother against supervising the child’s time with the father, or recommended the parties obtain assistance in trying to resolve relationship issues, the mother addressed these matters alone.  I accept as genuine the mother’s evidence that when the father behaved towards her with aggression, he frightened her.  When she assessed him as being calm and the risk of angry outbursts was low, her fear subsided to a level where she was able to put her desire to facilitate the child’s relationship with the father ahead of her residual anxieties.  This type of dynamic is not an infrequent aspect of post separation relationships.  I do not accept the mother sought the protection of Apprehended Violence Orders for forensic advantage.  She sought nothing more than assistance to keep a difficult situation calm and protect herself at a time when she was afraid of the father’s lack of boundaries and his anger.  Her actions were not inappropriate and almost certainly stopped a difficult situation from deteriorating.  

16. The parties agree while they cohabitated there were many arguments which descended into verbal abuse.  There is little utility in reciting the detail of their arguments, and it is sufficient to observe they related to drug misuse, alcohol abuse, accusations of irresponsible behaviour and the like.  Each accuses the other of being the protagonist and there appeared to be little appreciation the most likely scenario was both contributed to many of the arguments.  The father said the mother was an anxious person, which anxiety played a role in their disagreements.  As I said earlier, there was a nexus between him being drunk or hung over and his aggression.  The father agreed he used to drink alcohol to excess, but denied this caused him to behave poorly.  It was the mother’s evidence that on a number of different occasions, when he was very angry, the father threw a coffee cup, shoes or a telephone handset.  She was hit with a flying shoe and the telephone handset.  Because on these occasions the father was drunk, I accept the mother is in a better position than him to know whether she was hit by any of these items.  On another occasion, the father forcefully pushed her out of bed. 

17. Prior to separation, it is the mother’s view the most serious and troubling incident occurred when she told the father she wanted to leave him.  This was in about December 2004.  This resulted in a heated argument during which the father grabbed the child and told the mother if she left, the child would stay with him and she would never find them.  The argument continued until the mother said she would not leave.  The father stayed with the mother and locked them in the unit for the night.  That is, the parties and child.  The mother said the father slept between her and the door so that she could not leave with the child.  The following morning the father was omnipresent and the mother felt she was ordered about.  By coincidence, that morning the parties’ fathers arrived at the same time.  The mother could hear her father calling out.  She unlocked the front door and ran out.  The first person she saw was the paternal grandfather.  She asked him to call the police and told him the father had locked her and the child in the house and was threatening to take the child.  Whilst the mother was saying these things to the paternal grandfather, her father arrived.  He took control of the situation and told the mother to leave with the child immediately.  With the paternal grandfather, the mother went back inside, took the child and left.

18. The father was adamant he did not “kidnap” the child and mother and says her description of him doing so on that occasion was exaggerated.  He agreed he locked the door to the flat, the situation between the parties was tense and there had been a serious argument, he had walked down the lane with the child and the mother ran out when the grandfathers arrived.  Clearly, if the mother believed she was the father’s prisoner throughout the night, when he fell asleep she could have escaped.  I do not accept the “kidnap” descriptor used by the mother is apt and consider it is a significant embellishment.  However, it is this incident which particularly caused the mother to fear if the parties separated, the father may disappear with the child.  While this was not within his contemplation after separation, it is this incident in particular, which motivated the mother to insist upon the father’s time with the child being supervised until orders were in place which regulated the child’s parenting arrangements.  Against the background of significant disputation and aggression prior to their final separation, the mother’s approach was not unreasonable and is not indicative of her unwillingness to facilitate the child’s relationship with the father. 

19. To some extent it to help her deal with the ongoing emotional stress she feels in relation to these incidents that motivated the mother to start therapeutic counselling.  When this is finally able to start it is likely to assist her to accept the risk of violence to her has abated.  Also that the risk the child would be exposed to family violence while she is with the father is at best theoretical. 

20. Section 60CC(3)(l) requires that the Court consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.  The longevity of the parties’ dispute has taken a heavy toll.  In particular, it has heightened the mother’s anxiety and has caused a strong undercurrent of further tension between the parties.  Further disputation and litigation is likely to exacerbate the tensions which ebb and flow between the parties and heighten the mother’s anxiety.  Even after this litigation has ended, given the speed within which the father sought to revisit the 2006 orders, it is likely to take the mother a reasonably significant period before she would come to feel reasonably freed from the risk of ongoing disputation about the parenting arrangements.  Given the structure of the 2006 orders, it was surprising he felt aggrieved the mother failed to concede, earlier periods of block time, longer weekends and the like.  Although I discern little appreciation by the father for the family consultant’s evidence about the significance of conflict for the child and the mother, it is my hope that with time he may reflect further upon her evidence and adopt a more sensible approach to his acceptance of orders, whether or not they were agreed.  In any event, there is little to distinguish the probability of future proceedings if orders are made as sought by the father or mother.  To the extent there is a distinction, it centres upon difficulties the child would be likely to experience if there was too significant a change to her circumstances, in particular, a reduction in time with the mother.  While I take this factor into account, it warrants relatively modest weight.

21. There is considerable overlap between s 60CC(4) and (4A) with s 60CC(3).  At various times, issues have arisen between the parties in relation to child support.  It is the mother’s view the father’s contribution at a present level of about $50 per week, is inadequate.  The parties’ financial circumstances were not sufficiently explored for me to be able to conclude that the father pays less child support than he is able to afford.  However, it was clear that without her parent’s financial backing, the mother would have really struggled to provide financially for the child.

22. Concern was expressed by the father that prior to January 2008, it was only after the event, the mother notified him the child had been hospitalised.  On the first occasion, the child was admitted to Hospital in about March 2006 with pneumonia and a few months later, to Hospital when she broke her arm.  The mother does not deny she did not tell the father about the child’s admissions to hospital while the child was in hospital.  Although the child required surgery for her broken arm, neither hospitalisation was on the upper end of seriousness.  However, the mother consciously decided not to involve the father because she was anxious about how he would behave to her, at a time when she was concerned about the child and trying to manage her hospitalisation.  As soon as the surgery was completed and the child was discharged from hospital, the mother telephoned the father and told him what had occurred.  He was angry he had not been informed earlier.  He was also cooperative and at the mother’s request, purchased the child a single bed.  The 2006 orders did not address parental responsibility and the mother was entitled to authorise the child’s medical care in the manner which she did.  However, if the parties were able to communicate reasonably, she should have consulted the father and given him the opportunity to participate, at least in the decision about the child undergoing surgery.  If I was satisfied the parties were able to communicate at that time without conflict, the mother’s actions would warrant adverse comment.  However, given the very tense, conflicted parental relationship and, at that time, recent difficult separation, the actions taken by the mother do not warrant overly critical comment nor weight.  Although the father believed the mother had enrolled the child at day care under the name Pearcy, she was enrolled under his surname. 

Conclusion

1. The parties agree they will have equal shared parental responsibility for the child.  Thus, the legislation requires that I consider orders for equal time with each parent.  I do not consider equal time orders to be in the child’s best interest.  I accept the family consultant’s opinion the parties have a highly conflicted relationship, and lack the skill and effective communication to enable such an arrangement to work for the child.  The father contested this notion and pointed out that at changeover conversations between the parties are civil and the child perceives her parents cooperate.  Emphasis was placed upon the parties reaching agreement about where the child would commence school and, his concession in favour of a private rather than his preferred state school.  Yet, it was clear there was little communication between the parties about the child’s routine, diet and matters of that ilk.Some information was exchanged but it was brief and indicative of poor rather than the higher level of good communication which would make equal time arrangements successful for this child.  This is more than an issue about whether the parties could cooperate about homework and such matters.  It goes to the heart of their ability to communicate about significant issues about the child with her interests at the forefront of their thinking.

2. It is relevant that there has been such significant disputation and litigation about the child, since separation.  Indeed, the hearing was listed when it was because of concern the parties would be unable to agree upon where the child would commence school.  Each has been advised by lawyers for much of the post separation period, with mediation and the family consultant’s input still unable to see them agree on matters in relation to the child for long.  While orders as proposed by the father would have the advantage of immersing the child in his and the paternal family’s life, in a manner indistinguishable in temporal terms from the time the child spends with the mother, this would be emotionally troubling for the child for the reasons already given.  The impact of the arrangement on the child would not be positive and it would almost certainly unsettle a child who is happy in her relationships with her parents and key family members with whom she enjoys demonstrably meaningful relationships.  An equal time arrangement is not in the child’s best interests.    

3. There is no disagreement the child should have at least substantial and significant time with the father, which outcome would be achieved even if further orders were not made.  The family consultant considered slightly more time was appropriate, particularly to ensure the father was able to be better involved in the child’s schooling.  With this approach I agree.  It is consistent with the child’s best interests.  Although there would still be communication issues and difficulties because of the parties’ conflicted relationship, the parenting issues which would arise if the approach recommended by this experienced family consultant were adopted are not so profound that they should stand in the way of this outcome.  I am strongly of the view that an additional night attached to the father’s alternate weekends is appropriate but should not start until the child has finished kindergarten. 

4. The orders will continue the now settled arrangement of alternate Wednesday overnights with the child to be collected and returned to school.  I agree with the father’s approach she should be with J for his birthday.  I also consider the mother’s application she has time with the child on the mother’s birthday is a special occasion the child should enjoy.  If the child is with the father on a day which is adjacent to a public holiday this presents a logical opportunity for her to have additional time with him without unnecessary disruption. 

5. Although the parties agreed the child would have half of the Term 1, 2 and 3 school holidays with each of them, they did not agree upon which half.  So as to share the opportunities for special events, such as Easter and civic occasions equally I have alternated between first and second halves. 

6. The child is old enough to enjoy regular telephone contact with an absent parent.   This will occur twice weekly and is to be carried out by the absent parent telephoning a nominated number.  This is a useful supplement to the time the child is in each parties care.  More frequent telephone contact may be disruptive. If the child is unavailable the call shall be returned as soon as is reasonable.  It is not my intention to require a party to have the child required to wait for a call at the nominated times.  Such an approach would be too inflexible and in the years ahead would almost certainly exacerbate the difficulties these parties have in their relationship with each other. 

7. When these arrangements are combined with the other applicable orders I am satisfied the orders identified at the start of this judgment are in the child’s best interests.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 September 2010.

Associate: 

Date:  22 September 2010.