Bosco & Shelton - [2022] FedCFamC2F 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bosco & Shelton [2022] FedCFamC2F 35

File number(s): CSC 53 of 2019

Judgment of: JUDGE COPE

Date of judgment: 21 January 2022

Catchwords: FAMILY LAW – Parenting – four year old child – father is an airline worker and mother is an airline worker – both parents subject to monthly rostering – where father is seeking equal shared parental responsibility and to nominate up to 15 days per month after roster is published to spend with the child – where mother is seeking sole parental and father to spend alternate weekend time with child – where real risk that the child will spend limited time with the father because the father will be unable to guarantee alternate weekend work rostering – where existence of a Protection Order and criminal charges against the mother – where equal time arrangement is in this child’s best interests – where complexity in drafting Orders that take into account each of the parties’ bids for time off work.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), Part VII, ss.60B, 60CA, 60CC, 60CG, 65AA, 61DA, 65DAA, 66E, 67B

Cases cited: Luu & Xia [2013] FMCAfam 35
M v M [1988] 166 CLR 69; [1988] HCA 68
Marchand & Mahony [2017] FCWA 67
Mazorski & Albright (2007) 37 Fam LR 518; [200] FamCA 520
MRR v GR [2010] 240 CLR 461; [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 291

Date of hearing: 1 & 2 November 2021

Place: Cairns

Solicitor for the Applicant: Mr Blackburn

Counsel for the Respondent: Mr Jacobs

Counsel for the Independent Children’s Lawyer Mrs Bassano
ORDERS

CSC 53 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BOSCO

Applicant

AND:
MR SHELTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE COPE

DATE OF ORDER:

21 JANUARY 2022

THE COURT ORDERS THAT:
Parental responsibility
1.The parties have equal shared parental responsibility for the child X born in 2018 (“the child”) for the major long term issues of the child, including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

2.The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision

3.Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.

Living Arrangements – School Terms
4.The child live with the Mother and the Father pursuant to the terms of these Orders:
(a)In the months where the Father is to nominate the days that he spends with the child, the Father will notify the Mother of all roster bids as soon as practicable after the Father has submitted the roster bids;
(b)In the months where the Mother is to nominate the days that she spends with the child, the Mother will notify the Father of all roster bids as soon as practicable after the Mother has submitted the roster bids; and
(c)NOTING THAT both parents currently work for Airline B on a monthly roster subject to change, the parents will alternate month-by-month which parent is to have first choice of nominations for time with the child.

5.To give meaning and effect to Order 4 above:
(a)in even numbered years the Mother will have first option to nominate dates for the month of January and each alternate month thereafter; and
(b)in even numbered years the Father will have first option to nominate dates for the month of February and each alternate month thereafter;
(c)in odd numbered years, the Father will have the first option to nominate dates for the month of January and each alternate month thereafter; and
(d)in odd numbered years, the Mother will have the first option to nominate dates for the month of February and each alternate month thereafter;
(e)In the months where the Father is to have first nomination of the time that the child will spend with the Father, the number and configuration of days will be as agreed between the parties, and failing agreements as follows:
(i)Until the child commences prep school, up to 10 nights per calendar month, with a maximum of two consecutive nights at a time and with time to commence at 2:40pm and to conclude at 2:40pm save and except that on one occasion each six months (to run from January to June and July to December), the father may nominate one three day block;
(ii)The Father is to notify the Mother of his proposal for time with the child at least three (3) days after the Father’s roster is published;
(iii)From when the child commences grade 1, up to 12 nights in each calendar month for a maximum of three consecutive nights with changeovers to occur at the conclusion of the school day or 3:00pm on a non-school day; and
(iv)From when the child commences grade 2, up to 15 nights in each calendar month for a maximum of seven consecutive nights with changeovers to occur at the conclusion of the school day or 3:00pm on a non-school day; and
(v)The child will live with the Mother when the Child is not living with the Father.

(f)In the months where the Mother is to have first nomination of the time that the child will spend with the Father, the number and configuration of days will be as agreed between the parties, and failing agreements as follows:
(i)Until the child commences prep school, up to 10 nights per calendar month, with a maximum of two consecutive nights at a time and with time to commence at 2:40pm and to conclude at 2:40pm;
(ii)The Mother is to notify the Father of her proposal for the father’s time with the child at least three (3) days after the Mother’s roster is published;
(iii)From when the child commences grade 1, up to 12 nights in each calendar month for a maximum of three consecutive nights with changeovers to occur at the conclusion of the school day or 3:00pm on a non-school day; and
(iv)From when the child commences grade 2, up to 15 nights in each calendar month for a maximum of seven consecutive nights with changeovers to occur at the conclusion of the school day or 3:00pm on a non-school day; and
(v)The child will live with the Mother when the Child is not living with the Father.

Special Days
6.Notwithstanding Orders 4 and 5 above, unless otherwise agreed by the parties in writing, the child shall spend time with the non-resident parent on special days as follows:
The Child’s Birthday
(a)In 2022 and each even numbered year thereafter, with the Mother from 3:00pm on a non-school day, or once the child commences school and it is a school day from the conclusion of school, until 3:00pm the following day on a non-school day, and on a school day, until the commencement of school the following day;
(b)In 2023 and each odd numbered year thereafter, with the Father from 3:00pm on a non-school day or once the child commences school and it is a school day, from the conclusion of school, until 3:00pm the following day on a non-school day, and on a school day, until the commencement of school the following day.

Christmas
(c)In 2022 and each even numbered year thereafter, with the Mother from 3:30pm on Christmas Eve to 3:30pm on Christmas Day; and
(d)In 2023 and each odd numbered year thereafter, with the Father from 3:30pm on Christmas Eve to 3:30pm on Christmas Day.

Easter
(e)In 2022 and each even numbered year thereafter, with the Mother from 3:30pm Good Friday until 3:30pm Easter Sunday; and
(f)In 2023 and each odd numbered year thereafter, with the Father from 3:30pm Good Friday until 3:30pm Easter Sunday.

Father’s Day and Father’s Birthday
(g)With the Father from 3:30pm the day prior to Father’s Day until 10:00am the day after Father’s Day and from 3:30pm the day prior to the Father’s birthday until 10:00am the day after the Father’s birthday.

Mother’s Day and Mother’s Birthday
(h)With the Mother from 3:30pm the day prior to Mother’s Day until 10:00am the day after Mother’s Day and from 3:30pm the day prior to the Mother’s birthday until 10:00am the day after the Mother’s birthday.

Sibling Birthdays
(i)From 8:00am to 5:30pm with the parent whom is the direct family relation to the Child if the family member is in the same town as the Child. Variation to this time is permitted for dinner parties however the parent requesting the later time is responsible for dropping the child directly home.

7.Special days will be in addition to the set spend time arrangements, in the event that they occur on days that are not within the set days.
8.Where a parent is unable to spend time with the child on special days in accordance with these Orders, then they may each make alternative arrangements for the care of the child on those days or in the alternative advise the other parent in writing of their unavailability at least seven (7) days in advance.
9.The parents may agree in writing to vary the start and finish times for contact on special days or other occasions, and shall do so where it is necessary to ensure that some contact takes place in particular on special days.

Changeovers
10.Until the child commences prep school, the changeover is to occur at 2:40pm at the child’s day care or if he is not attending day care that day then at the McDonald’s Family Restaurant at Suburb C.
11.Upon reaching school age, changeover will be at the child’s school during the school term and, where a time is not otherwise nominated at 3:00pm, for a non-school day at the McDonald’s Family Restaurant at Suburb C.

School
12.Upon reaching school age, the child is to attend Suburb C State School or such other school as agreed to by the parties in writing.

School Holidays (As of Term 1 School Holidays 2022)
13.Orders 4 and 5 herein are suspended for each parent on:
(a)One occasion each year for up to two (2) weeks during the short school holidays ending Terms 1, 2 and 3; and
(b)One occasion each alternate year for up to three (3) weeks during the Christmas school holidays with the half of the holiday as agreed between the parents and failing agreement:
(i)With the Mother for the first half in 2022 and each alternate year thereafter; and
(ii)With the Father for the first half in 2023 and each alternate year thereafter.

(c)Each parent is to inform the other by no later than 31 January each year (extended to 28 February in 2022), whether they intend to take up the school holiday block time; and if intending to travel out of City D with the child to provide the other parent with an itinerary of travel fourteen (14) days before travel occurs.

Communication
14.Unless otherwise agreed, the parties will communicate with each other about matters concerning the child in writing via either the Talking Parents App, WhatsApp and/or email.
15.The parties are not to call each other unless it is related to discussing changeover arrangements, emergencies related to the child or as otherwise agreed in writing.
16.Each party will keep the other party informed at all times of their residential and email address and contact telephone number.

Non-Denigration
17.The parties will:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully to the child, or in the presence or hearing of the Child;
(c)Not denigrate the other parent, or their respective families to, or in front of, or within the hearing of, the child;
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child, and failing their compliance with such a direction, shall remove the child from that environment immediately;

Restraint
18.Neither party will physically discipline the child nor allow any other person to do so.

Authorities
19.The parties shall continue to use E Medical as General Practitioner for the child and the practitioners at E Medical are to provide both parties with information that they are lawfully able to provide about the child, and this Order shall serve as such authority.
20.Both parents shall notify each other of the name and address of any treating medical or other health practitioner, if the child attends upon a different medical centre or practice than his usual practice, who treats the child and authorise that practitioner to provide to the other parent with information that they are lawfully able to provide about the child, and this Order shall serve as an authority for same.
21.Each party shall inform the other party as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other party.
22.Both parents shall notify each other as soon as practicable in the event that the child suffers injury or illness that requires urgent medical treatment and/or hospitalisation.
23.The parties shall keep each other informed of any day-care, school, educational facility or extra-curricular activity provider and will authorise those providers to provide the other party with information that they are lawfully able to provide about the child and the option to purchase day-care/school photographs, and this Order shall serve as an authority for same.
24.Subject to the requirements of the child’s school/day-care provider, the parents are both authorised by this Order to attend day-care/school events in which parents or family are ordinarily invited to participate.

Overseas Travel
25.That the child be permitted to travel outside of the Commonwealth of Australia for the purpose of a holiday with either party provided that:
(a)Unless otherwise agreed between the parties in writing, at least twenty-eight (28) days prior to the proposed date of departure from Australia, the party proposing the travel provide the other party with a written itinerary of the proposed overseas travel for the child including a copy of the child’s confirmed flight itinerary and addresses and the telephone contact details for accommodation while the child is overseas;
(b)Unless otherwise agreed between the parties in writing the party proposing the travel is restrained from taking and/or keeping the child outside the Commonwealth of Australia except for the dates specified in the written itinerary provided to the other party;
(c)Unless otherwise agreed between the parties in writing, the proposed travel must fall within the periods of time the child is spending with that party pursuant to this Order;
(d)That whilst the child is travelling overseas the travelling party is to arrange for the child to contact the non-travelling party on at least two (2) occasions each week with the days and times to be agreed between the parties;

Passports
26.That the Mother and Father shall do all acts and sign all necessary documents to ensure that at all times the child is issued with a valid Australian passport.
27.That within seven (7) days of receiving the other parent’s notice of proposed travel in accordance with these Orders, the parent holding the passport is to do all acts and things to deliver the child's passport to that parent.

Other Orders
28.The Independent Children’s Lawyer be discharged 30 days from the date of these Orders.
29.All outstanding Applications be dismissed and the matter be removed from the Court’s list of active pending cases.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bosco & Shelton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE
PART 1: INTRODUCTION

The proceedings before the Court are in relation to the parenting arrangements for the child, X born in 2018 (“the child”) who is shortly to turn four years of age.
The parties to the proceedings are the Applicant, Ms Bosco (“the mother”) aged 37 years and the Respondent, Mr Shelton (“the father”) aged 46 years.
The mother is an airline worker working on a part time basis and the father is an airline worker working on a full time basis. Both are subject to potentially shifting monthly work rosters.
The mother considered the parties to be in a relationship from late 2016 until mid-2019. The father’s evidence is that the parties were “friends and we started to spend more time together…We have however never lived together.”[1] The father gives evidence that the question of whether they were in a relationship was a matter of ongoing conflict between the parties.
[1] Father’s affidavit filed 14 October 2021, paragraph 12.
The mother filed an Initiating Application on 26 January 2019 seeking Orders pursuant to section 67B of the Family Law Act 1975 (Cth) for the father to pay the amount of $18,671 by way of lump sum for the mother’s maintenance and reasonable childbirth and medical expenses in relation to the pregnancy and birth of the child.
On 19 August 2019 the father amended his Response in order to include Parenting Orders for the child to live with the mother and spend time with the father on days he nominated following receipt of his work roster. The mother then amended her Initiating Application on 19 September 2019 seeking that no contact or communication occur between the father and child and sought several restraints against the father.
The matter came before the Court on 27 September 2019 for an Interlocutory Hearing when Orders were made for the child to live with the mother and spend day time only periods with the father during the father’s rostered days off for three hours on week days and 8:00am to 4:00pm on weekend days.
The mother’s application pursuant to section 67B was finalised by Consent Orders on 15 October 2019.
An urgent Application in a Case was filed by the mother on 4 October 2019. That application sought interlocutory Orders that the father to spend a maximum of eight (8) days in any roster period with the child and generic travel Orders. On 19 March 2020 the Court ordered holiday contact for the father each Monday, Tuesday, Saturday and Sunday from 9:30am to 5:30pm with changeovers at Suburb C MacDonald’s.

Interlocutory Orders and Reasons for Judgment were then delivered on 22 April 2020 which provided that while the father was stood down from work (due to Covid-19) his time increased such that by 25 May 2020 he spent time with the child from 9:00am Monday to 5:00pm Tuesday each week and also from 9:00am to 5:00pm each Sunday. Those Orders also provided for a regime of time once the father returned to work which is set out below. Those are the arrangements currently in place.
The father filed an Application - Contravention on 28 October 2019 alleging the mother failed to deliver the child for contact. A second Application – Contravention was filed by the father on 7 January 2021. On 29 April 2021 findings were made that the mother had breached the Orders without reasonable excuse on four occasions. Make up time was ordered, the Orders varied so that all handovers were to occur at MacDonald’s Restaurant in Suburb C and the mother was required to complete a Parenting Orders Program.
On 29 July 2021 the father filed an Application in a Case seeking to further vary the Interlocutory Orders. That Application was dismissed on 13 September 2021 as the matter was listed for trial to commence on 1 November 2021.
This matter has had a long and litigious history before the Court with Orders being made on 19 separate occasions prior to the contested final hearing. This summary reflects only the most significant of those Orders.
Current Living Arrangements
In accordance with the interlocutory Orders made on 22 April 2020, the parties have equal shared parental responsibility and the child lives with the mother. The child spent time with the father during the time the father was stood down from work as set out at paragraph 10 above.
Her Honour also made Orders for the father’s time with the child after the father returned to work to occur on 12 days each month to be nominated at the father’s discretion. As part of the father’s nominated 12 days per month, the father was to spend time with the child for one overnight in a seven day period from 9:00am until 5:00pm the following day and at least one day in each seven day period from 9:00am to 5:00pm. Once the child turned three years of age the overnights were to increase to two consecutive nights in a seven day period during the father’s 12 days each month.
Orders were also made for time on special days and communication via FaceTime or other means up to three times a week and more if agreed.
Competing Proposals
The parties both filed Outline of Case documents on 28 October 2021. The mother filed a further Amended Initiating Application on 29 October 2021. The father’s proposed Final Orders are set out in a Further Amended Response on 26 October 2021 and the Outline of Case document.
In summary the mother seeks Orders for sole parental responsibility, that the child live with her and spend time with the father each alternate weekend from 5:00pm Friday to 9:00am Monday. The mother’s proposed Orders also make provision for time on special days including the child’s birthday, Christmas, Easter, the parents’ birthdays, Mother’s Day and Father’s Day. In relation to school holidays, the mother proposes that the parties each spend time with the child for six weeks each year and detailed provisions are set out in relation to how that should work. The mother also seeks Orders that the child to attend F School or G School and Orders in relation to exchanges, communication, and specific issues.
In summary, the father seeks Orders for equal shared parental responsibility, the child spend time with the father up to 15 nights in each calendar month and for the child to attend Suburb C State School. The father proposed notifying the mother of his request for time with the child within three days from the date the Father’s roster is published.
The Outline of Case for the Independent Children’s Lawyer (“the ICL”) did not include draft Orders however those were provided in the course of submissions and a later version provided expanded to include ancillary child matters. The ICL proposed sole parental responsibility to the mother conditional upon consultation with the father. As regards time spending arrangements, the ICL’s proposal was that the child live with the mother and spend 12 nights per month with the father, with the parents alternating month by month the power to nominate those days. The ICL proposed that there be block school holiday time of two weeks for each parent in the midyear holidays and a three week block in the Christmas holidays. The ICL otherwise proposed standard Orders regarding communications, non-denigration, notifications and authorities.
This case is unusual in that both parents work on monthly rosters. That means that regardless of the outcome, the arrangements will be more complicated than might usually be the case and will require a high degree of cooperation and communication.
The Issues for Determination
The significant issues for the Court’s determination are: -
(a)Whether the mother should have sole parental responsibility or the parties should have equal shared parental responsibility;
(b)Whether the child should live with the mother and spend alternate weekends with the father with provision for special days, school holidays and the like. Whether, in the alternative, the child should live between the parents spending up to 12 or 15 nights in each calendar month in the father’s care with provision for the number of consecutive nights;
(c)Where the child is to attend school. The father proposes that the child attend Suburb C State School. The mother proposes that the child attend at either G School or G School.
The mother also seeks Orders in relation to costs of the child’s education, the nomination of the child’s general practitioner and provision that the only people who can attend for handover, are the parents or their siblings.
The father proposes that changeovers take place at school and on a non-school day at McDonald’s Restaurant Suburb C. Prior to the child commencing school the father proposes that Handover take place at McDonald’s Restaurant Suburb C or alternatively at the child’s day-care being H Day Care Centre at Suburb J with a minimum of two hours’ notice.
The mother’s proposal is that changeovers take place in the child’s day care or school and on a non-school day at Suburb K library and in the event of a public holiday or library closure then at Suburb C McDonald’s.
Risk Factors – Family Violence
The father alleges that on 27 September 2018 the mother assaulted him after becoming angry and that she punched him in the head approximately four times. The father gives evidence that he reported the incident to 1800respect and notified the police but did not press any charges or file a DV application.[2]
[2] Father’s affidavit filed 14 October 2021, paragraph 29
The mother alleges domestic violence perpetrated against her by the father on that same date including rape. This allegation was not reported at the time.[3]
[3] Exhibit F1
The mother filed a Protection Order Application on 30 August 2019 naming the Father as the respondent. The Mother withdrew the Application on 3 October 2019.
On 14 September 2020 events took place in which each party alleges the other perpetrated family violence. The mother alleges that the father strangled her on this occasion[4]. The father alleges that the mother physically assaulted him by punching him, head-butting him, biting his triceps and puncturing his forearm with her fingernails. The police were called to the campground where they were staying[5].
[4] Mother’s affidavit filed on 5 October 2021, paragraph 60(v) and annexure 2
[5] Father’s affidavit filed 14 October 2021, paragraph 55
The father made a police statement regarding the events of 14 September 2020. A Police Protection Notice issued on 1 October 2020 naming the father as the aggrieved and the mother as the respondent.
The Mother then filed a Protection Order Application on 27 October 2020 which she later withdrew on 17 December 2020.
In December 2020 a Protection Order was made naming the father as the aggrieved and the mother as the respondent.
The mother was charged with assault occasioning bodily harm on 3 January 2021 arising out of the events of 14 September 2020. Those charges had not been finalised at the time of trial.
In April 2021 the mother made a Police complaint alleging that during the incident of 14 September 2020 the father strangled her resulting in a loss of consciousness. The father was not charged with any offence arising from that complaint.
In May 2021 the mother reported the rape which she alleges occurred in September 2018. The father was not charged with any offence arising from that complaint.[6]
[6] Exhibit F1
Risk Factors – Child Abuse and Child Neglect
On 14 May 2021 the child was burned to his face, neck and shoulders with boiling water when in his father’s care. The Father provided an explanation to the Family Report writer that the child grabbed a mop bucket and provided the same explanation under cross-examination. The Mother does not accept the father’s explanation and expresses concerns regarding the well-being of the child in the father’s care.
In 2015 a work colleague of both parents (whom I shall refer to as “the work colleague”) was at the father’s home and having had a few drinks stayed overnight. That person was found by the father “in bed cuddling L”,[7] the father’s child from a former relationship. The father’s evidence is that he acted protectively, speaking to both this person, to L’s mother and to L. Having made those enquiries, the father ultimately gave that person the benefit of the doubt and accepted that he just stumbled into the room accidentally and that nothing occurred. The father’s evidence was that he nonetheless cut all social ties with that person and when further allegations arose concerning the work colleague’s behaviour towards other children he reported the matter. The mother’s evidence is that she is concerned about the father’s judgment and therefore the safety of the child in his care as a consequence of this incident.
[7] Affidavit of Ms N filed 19 February 2020, paragraph 67
The mother also raises concerns about the father’s alcohol use and its impact on his ability to care for X.
The Child
At the time of trial, the child was shortly to turn four years of age. X is the mother’s only child.
X has two siblings on his father’s side being L born in 2010 (11 years of age) and M born in 2012 (9 years of age). Both of those boys live with their mother but spend regular time with the father around his work roster.
The Family Report writer in the first Family Report filed on 19 February 2020 observed the child had a “very close” bond with the mother, a “close” bond with the father[8] and noted a “close relationship” between X, and his brothers L and M[9].
[8] Affidavit of Ms N filed 19 February 2020, paragraph 116
[9] Affidavit of Ms N filed 19 February 2020, paragraph 87
In the first Family Report the mother described the child as “boisterous. He is a friendly, smoochy little guy. He is very inquisitive, active and very talkative”[10]. The father describes the child as “having a good sense of humour. He is well mannered and good looking; he has Ms Bosco’s looks. X is charismatic. He is physical and enjoys physical games. X is a very nice, well-adjusted child. He is delightful and adaptive”[11].
[10] Affidavit of Ms N filed 19 February 2020, paragraph 42
[11] Affidavit of Ms N filed 19 February 2020, paragraph 59
In the second Family Report filed 22 October 2021, the child was described as presenting as “a healthy and happy child” and the writer had no doubt the parents care deeply for X[12].
[12] Affidavit of Ms N filed 22 October 2021, paragraphs 65 and 66
X is fortunate indeed to have two parents who love him very much and to be able to maintain meaningful relationships with them and with his brothers.
Work Rosters
Both parents work for B Airline. What that means is that both parents are subject to monthly rosters. Whilst the mother is currently working part-time, six days per month, that may be subject to change in the future. The mother’s evidence in cross examination was to the effect that she would consider doing international flights again but that would be dependent on the arrangements for the child.
The father’s evidence was that he works a maximum of 100 air hours per month.
The evidence about the parents’ monthly rosters is summarised as follows:
·The father receives his rosters about 10 days prior to the commencement of the next month and that roster will cover that next calendar month.
·The mother receives her roster at least seven 7 days prior to the commencement of the next month and that roster covers the next calendar month.
·Each party may bid for the days they would like to work or not work and they can do that on a month by month basis or they can put their bids in on an ongoing basis or as far in advance as they wish.
·The parties cannot be guaranteed they will get the days they bid for. For example the father said he routinely bids to have Thursday, Friday and Saturday free for the child and whilst that often happens he could not guarantee that. The mother’s current situation appears to be that she generally gets what she bids for as regards flights.
PART 2: THE EVIDENCE
The mother relied on the following documents:
(a)Amended Initiating Application filed 28 October 2021;
(b)Affidavit of the mother filed 5 October 2021; and
(c)Outline of Case filed 28 October 2021.
Whilst the Outline listed the expert evidence and the father’s affidavit material that is properly to be read by the ICL and the father respectively.
The father relied on the following documents:
(a)Further Amended Response filed 26 October 2021;
(b)Affidavit of Ms O filed 14 October 2021;
(c)Affidavit of the father filed 14 October 2021; and
(d)Outline of Case filed 28 October 2021.
Whilst the Outline listed the Family Report, again that is properly to be read by the ICL.
The Independent Children’s Lawyer relied on the following documents:
(a)Affidavit of Ms N filed 19 February 2020;
(b)Affidavit of Ms N filed 22 October 2021;
(c)Affidavit of Ms P filed 27 October 2021; and
(d)Outline of Case filed 28 October 2021.
Each of the parties and their supporting witnesses gave evidence, as did the Family Report writer. All witnesses were made available for cross-examination.
The following documents were tendered:
(a)Subpoena material received from Queensland Police Service marked as “Exhibit F1” and tabbed at the relevant pages.
I have read the material relied on and tendered, heard the cross-examinations and submissions and considered the evidence of each of the parties, their witnesses and the expert evidence in these proceedings. I have taken that evidence into consideration along with the final submissions made on behalf of each party in making this decision.
Where I have made findings, those findings are clear on the face of these Reasons and have been made on the balance of probabilities as required by s 140 of the Evidence Act 1995 (Cth).
THE WITNESSES
The parties’ evidence under cross examination is addressed here and also, where relevant, in the Part 4 where I apply the law to the circumstances of this case and the findings that I have made at relevant times.
The Mother
The Mother was calm and focused in the witness box. Her evidence was delivered clearly. In the main when taken through the evidence, the mother remained composed, however she became distressed when Counsel for the father cross-examined her in relation to the alleged rape and the timing of the complaint to the police. This evidence is explored in more detail when I review the s 60CC(3) factors.
The mother understandably expressed a great deal of resentment and frustration that under the current Orders the father has sole control of which days he spends with the child. It is noted that the mother does not wish to provide her roster to the father, which makes it difficult, if not impossible, for the father to consider the mother’s convenience.
During the course of cross-examination it was suggested to the mother that her focus was on money rather than the child. The Court accepts that the initial proceedings filed by the mother were in relation to the child birth expenses but that does not mean the mother is focussed on money rather than the child. I am satisfied that the mother is child focused.
There is however much contradiction in the mother’s evidence. For example, her evidence is that she is fearful of the Father, that she is the victim of a sexual assault and a strangulation event and she asks that changeovers not take place at the day care centre which is next door to her home. Despite that, the mother at times communicates with the father in robust terms and on one occasion proposed herself and her family as alternative carers for the father[13].
[13] Father’s affidavit filed 14 October 2021, annexure M15
The Court notes the mother’s insistence that any carer for the child be registered with the government as a child carer. It is unfortunate that the child may be cared for by third persons when there is a parent who is ready, willing and able, however in circumstances where there is a Protection Order, the mother has been charged with a criminal offence, the mother has herself twice filed and twice withdrawn a Protection Order Application and made allegations of rape and of strangulation against the father, it is not a matter where the parties could easily or appropriately babysit for each other.
During cross-examination, the mother was asked about when she refused to make the child available to spend time with the father on Father’s Day 2020. The mother’s position was that her interpretation, which was based on other Orders, was that if the father could not spend the full day with the child then he was not to have any time at all. This is a very narrow and unfortunate interpretation of the Orders. I am of the view that that was not what was intended. The mother however was adamant in that position.
I am of the view that to deny a child time with the parent on Father’s Day or the father’s birthday or other significant events due to a narrow interpretation of Orders is not in that child’s best interests.
During cross-examination, the mother was asked about a picture the father posted on Facebook. The mother had requested the father take the post down stating:-
Remove the post and my name or I’ll get a dvo against you for harassment and posting me and our son without permission… posting publicly therefore exposing him to pedophiles that you past befriended such as [name redacted]… I’ve been sent screenshots of what you posted and who has liked it/commented…he’s innocent and needs protecting from you…you wanted him dead…you forfeited any right to put any pic anywhere due to that…I’ll tell EVERYONE just how little you loved supported and treated him…got texts from just a month ago saying ‘you brought him into the world’…what if I post them?? Not a lie is it…take it down and don’t ever use him again for attention…I’m telling your mum and sister[14]
(As per the original)
[14] Father’s affidavit filed on 14 October 2021, annexure M3
The post in question consisted of family pictures featuring the child with the words “hands down the highlight of my 2018. My little boy X joining us. You’re mum, Ms Bosco, built you really well..I Love you mate. Happy ny everyone.” I am of the view that this Facebook post did not warrant such an extreme response from the mother.
During cross-examination when asked about this post, the mother said she didn’t mean for it to be a threat. I am uncertain how else that could be interpreted in the circumstances. Ultimately the mother’s response was she simply did not like the post. I find that the mother’s communication with the father was threatening and that she intended it to be so.

The mother’s focus on the work colleague previously referred to and the risk of paedophiles generally is in my view completely out of proportion to the events that occurred, particularly in the context of the father’s evidence as to how the incident was addressed both at the time and subsequently.
The mother’s more recent and out of the blue concern about the risk of a female friend of the father’s being a child abuser, leave it open to the Court to form the view that the mother was using that 2015 incident to maintain control of who was caring for the child.
In the updated Family Report[15], the Family Report writer expressed the opinion that the mother might be trying to “micromanage” - for example regarding the child participating in activities only of her choosing.
[15] Affidavit of Ms N filed on 22 October 2021, paragraph 72
During cross-examination, the mother talked about flexibility and trust. Unfortunately for the mother the Court cannot rely on her ability to be flexible, noting the contraventions and in particular the failure to make the child available to spend time with his father on Father’s Day or on other days where the father had worked a half shift and could have taken the child into his care later in the day.
The Father
The father was composed through the lengthy cross-examination and I formed the view that he answered questions openly and honestly.
He was asked to explain the two and half year delay in reporting the work colleague being found in his son’s bed. The explanation given by the father was that having spoken to his son and the work colleague he had provided that person with the benefit of the doubt. He accepted that the work colleague may well have gone to the toilet in the middle of the night. He also gave evidence that the work colleague was “on” the bed and not “in” the bed which supported that view. He advised the Court that he had however ensured that the work colleague was not allowed a second such opportunity.
When however other parents in his workplace raised similar concerns about the work colleague some two years later, the father’s evidence was that he again acted protectively in that he attended meetings and made a notification to the employer assistance program.
I find that the father acted appropriately as regards the event with the work colleague. As is established by the photographs annexed to the father’s trial affidavit[16] the mother was herself on friendly terms with the work colleague so I do not accept that she has grounds to criticise the father’s judgment. I find that the mother had no basis to question his judgment as a consequence of those events or to dictate to the father who should babysit their son.
[16] Father’s affidavit filed 14 October 2021, annexure M14
When a parent has a child in their care, they have the day to day care of the child. That means that parent can, without consultation with the other parent, make whatever arrangements they deem appropriate for the child during that time. If that means a babysitter, or a government agency, or an extended family member or friend, then that is a matter for that parent.
I am not in a positon to make findings as to whether or not the work colleague is in fact a paedophile. The Court is however in a position to make findings, and I do make findings, based on their evidence that both parents have acted protectively of the child and I have every expectation that they shall continue to do so.
The father was a convincing witness regarding the mother’s allegations of rape. He was clearly uncomfortable but he answered challenging cross-examination openly and without prevarication. I accept his evidence.
The mother has expressed concern in her Affidavit material in relation to the father’s drinking. It is noted that the father is an airline worker. Whilst the mother’s evidence was that airline workers have ways of getting around the tests, there was certainly no evidence of that before the Court. Rather I am somewhat comforted by the fact that the father is an airline worker, and that he is subjected to rigorous controls and testing.
The father was cross-examined in detail about how the child came to be burned with hot water. I accept the father’s explanation.
Summary of Findings
Given the seriousness of the allegations made by the mother I observed both parties carefully through the trial – their cross examinations as summarised in these reasons and their conduct in the hearing.
I formed the view that the mother requires to be in control of what is occurring around her and that extends to her relationship with the father, arrangements for the child and also to these proceedings.
I formed the view that the mother’s need to maintain control of her surroundings is impacting on her judgment, in relation to these proceedings and those in the State Courts, her own conduct and importantly in relation to what is in the best interests of the child.
I formed the view that the mother’s evidence was tailored, whether intentionally or otherwise, to ensure that she was able to maintain or regain control of the child’s arrangements and care in the future.
I then considered whether the mother was deliberately manipulating or creating evidence to punish the father or out of vindictiveness. Having seen the mother in the witness box and throughout these proceedings, I am of the view that is not the case.
I prefer the father’s evidence to that of the mother in relation to the allegations of family violence and indeed I prefer his evidence at any stage where he and the mother were in disagreement for the reasons outlined in my assessment of the parties and findings above and in particular based on the following:
(a)The timeline of events which reflects that the mother’s filing and withdrawing of Protection Order Applications and the making of two criminal complaints against the father follows events where she has been unsuccessful in Court or has had criminal charges or a Protection Order made against her;
(b)The mother’s insistence on relying on the events from 2015 with the former work colleague as an indicator that it reflects the father had poor judgment in circumstances where she also was on good terms with that person;
(c)The fact that she moved in next to the day care on a main road then used that to allege the father was following or stalking her;
(d)The threatening over-reaction to a harmless Facebook post about the child;
(e)The mother’s insistence on set days and times for the child to spend with the father when the evidence is clear that he will be unable to ensure availability on those days; and
(f)The mother’s presentation in Court and the Orders that she seeks, which demonstrate in my view her need to obtain and maintain control.
Ms N – the Family Report writer
The Family Report Writer, Ms N, had the opportunity to meet with this family on two separate occasions.
The first Family Report was filed on 19 February 2020. Interviews were conducted between 14 & 17 January 2020. The second Family Report was filed on 22 October 2021. Interviews were conducted between 15 & 18 October 2021.
First Family Report
In the first Family Report, the father stated “I have no concerns about [the mother] as a parent, my concern is about her capacity to co-parent.”[17]
[17] Affidavit of Ms N filed on 19 February 2020, paragraph 65
In the first family report, the Family Report writer recommended equal shared parental responsibility, the parents to communicate via Talking Parents, the child live with the mother and spend time with the father, and that the parties share with each other their routines and behavioural expectations for the child.
In that report, the Family Report writer also recommended the child’s time with the father incrementally increase such that, in summary, he move from two separate days with the child, to a 24 hour period with one overnight to commence about mid-March 2020 later extending on the second day to conclude at 5:00pm. She also recommended that there not be more than one night a week until 1 September 2020, unless otherwise agreed.
The Family Report writer also recommended that unless otherwise agreed in writing, from 1 September 2020 the child spend not more than six nights per month with the father with two consecutive nights not to occur before 1 February 2021.
The Family Report writer then went on to recommend that from 1 February 2021 the child’s overnight time with the father increase to eight nights per month and the restriction of no more than two consecutive nights be applicable until 1 February 2022. Once the child attained the age of four years the Family Report writer recommended that the time with the father be increased to no more than three consecutive nights.
The Family Report writer recommended that the mother be able to suspend the child’s time with the father for up to six weeks a year over two blocks with no block of time exceeding four weeks provided that she provided three months the notice to the father.
Second Family Report
The recommendations in the updated Family Report continued to support equal shared parental responsibility, that the parties communicate via Talking Parents, that the child live with the mother and spend time with the father. She recommended that the parents negotiate their bids for work with a view to maximising the child’s time with each parent. The Family Report writer also recommended specific Orders for celebratory days of note.
In that updating Family Report, the report writer considered the alcohol fuelled altercation on 14 September 2020. She expressed the view that if the Court accepts the father’s evidence about those events then jealousy is likely to have been a contributing factor. She also expressed the view that should the Court accept the mother’s version of those events then jealousy was also a factor.[18]
[18] Affidavit of Ms N filed on 22 October 2021, paragraph 67
The Family Report writer expressed the opinion that if the parents “are genuine in their desire to effectively co-parent, there has to be trust. A starting point will be whether [each parent] can negotiate how they will bid for shifts.”[19]
[19] Affidavit of Ms N filed on 22 October 2021, paragraph 69
In summary, the Family Report writer sees sense in the parents routinely bidding to set days each month, but “discrete days from the other” and saw this as a way of alleviating the tension[20].
[20] Affidavit of Ms N filed on22 October 2021, paragraph 69
The Family Report writer was of the view that the parents’ accounts reflected that they had been able to effectively co-parent for a period of time in 2020. The Family Report writer went on to encourage the parents to put aside their differences and focus on raising their child[21]. She went on to say “If [the parents] continue to engage in conflict, the lifelong impact on X will be immense”[22]. Sadly for this child, to date the parents have not been able to reach an agreement and this matter is now in the hands of the Court.
[21] Affidavit of Ms N filed on22 October 2021, paragraph 75
[22] Affidavit of Ms N filed on22 October 2021, paragraph 75
Cross Examination
During the course of her cross-examination, the Family Report writer acknowledged that under the Orders made on 22 April 2020 the father was the only person who had the ability to nominate the days that he spent with the child and that the mother had no ability, other than with the father’s agreement, to have any control in relation to the days she spent with the child.
The Family Report writer acknowledged there was a level of distrust. She said that she had hoped it would have improved and the matter resolved through mediation but that had not been the case.
The Family Report writer was advised of the details of each parties’ proposal as follows;
·The mother’s proposal for the father to spend time with the child each alternate weekend, for some time during school holidays and a provision for special occasions.
·The Independent Children’s Lawyer’s then proposal of a 2/2/3 arrangement where, for example, the mother would have the child in her care Mondays and Tuesdays, the Father would have the child in his care Wednesdays and Thursdays and the parents alternate each weekend Friday to Sunday.
·The father’s proposal for 15 days with him having control of nominations as to which days. It is noted at this point, Counsel for the father advised the Court that the father would have no issue with the mother having “control” in relation to nominations in two out of three months, though that was later withdrawn in submissions.
The Family Report writer was asked to consider the arrangement where the parents would take turns in nominating or having the first option to nominate the days they wanted month by month. This would ensure that each party had control over each month in alternating years. In this way neither parent would have complete control of the process. The Family Report writer expressed the opinion that this arrangement could work for the child.
Whilst the Family Report writer stated, it would be in the child’s best interests to have stability and consistency, this is a situation where, as noted earlier, both parents are subject to monthly rosters and their working days simply cannot be guaranteed.
Under the Orders of 22 April 2020, the father spends eight nights and 12 days with the child. The father’s proposal is that time increase up to 15 nights per month.
The Family Report writer’s evidence was that she was considering total consecutive nights rather than total nights per month. Her evidence was firm that at the child’s age he should not have more than two nights consecutively and that up until and including Prep there would be no more than two or three consecutive nights in a row. She expressed the opinion that it should be mainly two nights in a row with the father but that the occasional three nights in a row would be manageable for the child.
When asked about the configuration in a week when talking about current time, she recommended two nights in a week, possibly three at a pinch. In summary she supported the child spending two and occasionally three consecutive nights with the father up to and including prep and then three consecutive nights from grade 1.
The Family Report writer’s evidence was that holidays could be for longer blocks. She gave evidence that during holidays there are activities going on so that longer periods of time would work well.
It was accepted by the Family Report writer that the search for predictability in the mother’s Orders and those proposed by the ICL (at that time) could not be achieved. While Orders could be made for alternate weekends or a 2/2/3 arrangement, because of the unpredictability of each parent’s roster there was a likelihood that each parent may be unable to spend time with the child on set days. This would not be desirable as both parents agree that it is important for the child to have a relationship and spend time with both his parents and also with his siblings and extended family members.
The Family Report writer expressed the view that parental responsibility should be shared. The Family Report writer said they were both good parents. She agreed with the suggestion that they both love their child and the child loves them both equally.
She expressed the view that the parents had made it work in the past for the period of time in 2020 and that they had the capacity to make it work again.
The Family Report writer expressed that she was supportive of a relatively equal time arrangement but that it would have to be creatively done as right now the child is too young for block periods of time away from his parents.
The Family Report writer also spoke about how each parent acknowledged and appeared to be insightful about the child having some “quirks”. Those quirks may place him on the Autism spectrum or they may amount to nothing more than quirks. Nonetheless the child is particular and he does like structure and routine.
The Family Report writer was supportive of the idea that a calendar be placed on the fridge in each household which reflected the living arrangements clearly so that it was a visual record for the child to see where he was going and when. In the view of the Court, colour coding such a calendar can be very meaningful for a child.
I found the family report writer to be an insightful and persuasive witness.
Final Submissions
Final submissions were of great assistance to the Court. I was referred to a number of cases which I reviewed, Marchand & Mahony [2017] FCWA 67 and Luu & Xia [2013] FMCAfam 35 and a third non-reported cases.
I do not propose to summarise the submissions here but shall refer to them in my determinations at relevant times.
PART 3: THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
In making parenting Orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. I must also ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG). No greater weight is placed on any particular additional consideration.
In M v M [1988] 166 CLR 69, the High Court held that a parenting order ought not be made if such order exposes the child to an “unacceptable risk” of harm. The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child, and is not limited to sexual abuse. I am to consider “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards.
In MRR v GR [2010] 240 CLR 461 on 3 March 2010 the High Court stated that s 65DAA(1)(a) and (b) and s 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
A determination as a question of fact that it is in the child’s best interests and also reasonably practicable that equal time or significant and substantial time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting Order of that kind. It is only when both questions are answered positively that I may make an Order for equal time, or if not equal, significant and substantial time.
PART 4: APPLICATION OF THE LAW TO THIS MATTER
I now turn to consider the application of the law to the particular circumstances of this case based upon the evidence and the findings that I have made, the reasons I have outlined for those findings and how they determine which parenting Orders are in the best interests of the child.
S 60CC(2) THE PRIMARY CONSIDERATIONS ARE:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
In the first Family Report at paragraph 116, the Family Report writer expressed the view that “X has a very close bond with Ms Bosco and a close bond with Mr Shelton”.
Neither parent disputes that the child needs to have a meaningful relationship with both parents. The question is how much time the child should spend with each parent and how that time should be configured.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

An issue was raised in Affidavit material and also in the Family Report as regards an allegation that the father’s older child L having been placed in a position of risk when in the father’s care. In the first Family Report, the father advised the Family Report writer, as reflected “that he woke one night to find a work colleague ‘in bed cuddling L”.[23]
[23] Affidavit of Ms N filed on 19 February 2020, paragraph 67
The father provided some further detail to the Family Report writer about that incident, how he spoke to the child’s mother and also the child about the incident and the steps he took to ensure that his children were protected from the risk of harm. The father’s evidence about this was sensible and to the point. I find that he acted appropriately and protectively based on the information to hand at the time.
Once other allegations came to his attention some time later about similar events concerning the work colleague in question, the father’s evidence is that he took active steps to address the issue formally. The Court is satisfied that the father again acted protectively.
The father was cross-examined extensively about this issue as it is a significant issue of concern for the mother. Whilst the Court notes that the mother’s concerns about the existence of paedophiles are valid, the insistence that this is a factor which points to a failure on the part of the father or that he has placed that child at risk of harm is not accepted by the Court.
The mother also gives evidence of an occasion where the child was in the pool with the father and the other children, and that it was she who had to act protectively when the child L was trying to hold the child above the water.
The mother also expresses concern in her material in relation to the child being treated for burns to his body from boiling water on 14 May 2021 whilst in the father’s care. The father was cross-examined about this incident. I am satisfied with his explanation that this was an unfortunate accident and does not reflect poorly on his parenting capacity.
The first Family Report includes a summary of the subpoenaed material. That summary notes that the child was taken in for assessment following a fall out of bed in November 2018, and attended at hospital in 2019 when in the mother’s care. It appears that the child fell either from a change table or a highchair and had mild swelling in on his forehead and scalp.
The child has therefore had accidents in the care of both parents. I am not troubled by any of those incidents as being red flags as regards abuse or neglect.
Both parents were properly concerned about the events involving the work colleague, however those events were dealt with by the father appropriately at the time and then again subsequently when further information came to the father’s attention.
I find that the child is not at risk of unacceptable harm in the care of either parent.
S 60CC(3) THE ADDITIONAL CONSIDERATIONS ARE:
S 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is not yet four years of age.
It has been suggested that the child is being coached or influenced to say negative things about the other parent.
The mother has at time relied on things said by the child to explain her concerns about the father’s care.
Very young children are poor historians and further it is not uncommon that a child will tell a parent what they think that parent wants to hear. I am of the view that it places an enormous burden on a child when a parent asks them or relies on what they say about disputed events.
It is most important that neither parent question the child about the other parent or things that occur in the other parent’s household. In circumstances where the child may say or do something of concern, then each parent needs to communicate with the other about those matters rather than blindly accepting statements that may not be true – not because children are liars but because they can be easily confused and easily led.
The child has a number of protective factors around him which includes not only two loving parents, but also day-care providers and extended family - and it will not be long until he has school as well.
For those reasons, I place no weight on any reported statements made by the child and relied on by either parent.
S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons (including grandparents or other relative of the child)
As noted above, under the heading “The Child”, X has an excellent relationship with both his parents and also with his siblings L and M.
During submissions on behalf of the father, I was pointed to the subpoenaed material from Queensland Police Service where the mother stated that the child is “happy” when he returns from his father’s care.
There was no suggestion that X is not happy and well-loved in both homes.
S 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)      To participate in making decisions about major, long term issues in relation to the child; and
(ii)     To spend time with the child; and
(iii)      To communicate with the child.
The mother initiated these proceedings in relation to childbirth expenses only. It was the father who initiated the proceedings as regards the child’s living arrangements in the Amended Response filed on 19 August 2019. When asked about this in cross-examination, the mother’s evidence was that she did not want to put the child through the stressors of being involved in Family Court litigation.
In his desire to spend regular time with the child, the father sought interlocutory Orders and filed an Application - Contravention on 28 October 2019 and a second one on 7 January 2021. Both Contravention Applications were in relation to the mother’s narrow interpretation of Court Orders which led to her limiting the father’s time with the child.
The Contravention Applications came before Judge Bowrey on 29 April 2021, and His Honour found that the mother had contravened the Orders without reasonable excuse in relation to both Applications. I formed the view that while both of these parents are highly intelligent they are both under enormous stress and as regards the events leading to the contraventions the mother’s judgment was clouded.
Having read the Affidavit material and heard the cross-examination, I formed the view that the mother preferred to interpret the Orders so as to reduce the father’s time with the child. As a consequence, Orders must be drafted with great particularity to ensure there are no such future issues that arise.
For the reasons set out above I find that the father has done everything possible to maximise his time and involvement with the child.
S 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The Affidavit evidence is to the effect that the father pays child support in accordance with the Child Support Assessment. The father’s evidence in his trial Affidavit is that he pays $1,226 per month for the child as assessed by the Child Support Agency. He also pays $1,835 to the mother of his two older children.
It is an undisputed fact that the father also contributed $3,680 expenses in relation to childbirth expenses, purchased a car seat for the mother to use and has met other expenses for the child.
The mother is the primary care giver for this child and it is an undisputed fact that she is meeting his day to day needs satisfactorily.
Whilst the mother seeks Orders in relation to payment of the child’s schooling, including costs associated with school uniforms and school supplies, the Act is very clear at s 66E that a child maintenance Order is not to be made in circumstances where an administrative assessment of child support could be made.
For this Court to deal with a child support issue, the Court would need to be satisfied that the proper steps have been taken through the child support process. That is not the case here.
I am satisfied that both parents are meeting their obligations to maintain the child.
S 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the first Family Report, Ms N commented that “children thrive on predictability and consistency”[24]. She went on to recommend that the parties share with each other the structure of the child’s day being day time routine and their behavioural expectations and the way they manage day to day issues for their son.
[24] Affidavit of Ms N filed 19 February 2020, paragraph 124
In this particular case, both parents work on a monthly roster. The father’s evidence was that he receives his roster about 10 days in advance. The mother’s evidence was that she receives her roster about seven days in advance. The mother does not want to disclose her roster to the father as she feels that to do so would be intrusion on her privacy. She has no objection to receiving the father’s roster.
The father was challenged in cross-examination as to why he drives past the mother’s house. I am satisfied with the father’s explanations that the mother’s house is on a main road and he drives past as the fastest route from A to B along that main road. I see nothing sinister in the father using a main road in the usual way.
I note the mother’s objections in relation to the use of the current day care. The mother lives next door to the child’s day care. The mother’s evidence was that she owned the house prior to these proceedings and that it had previously been an investment property into which she subsequently moved. The fact remains that the mother chose to move into that property knowing that it was on a main road, that it was next door to the day care and knowing that the father would be going to that day care to pick up and drop off the child.
In relation to each party’s proposals for time, it is noted that the child is not yet four years of age. It is also noted that in her most recent Family Report filed on 22 October 2021, the Family Report writer recommends that the child should live with the mother and spend time with the father as recommended in her first report.
In that first report, the Family Report writer recommended a build-up of time, such that from 1 February 2022 (once the child had turned four years of age) the child’s overnight time with the father be increased to no more than three consecutive nights, noting that her previous recommendation was for eight nights per month.
In accordance with the current Orders made by the Court on 22 April 2020, upon the father returning to work, the father was to spend 12 days per month with the child and upon the child turning three years the child would live with the father for two consecutive nights in any seven day period as part of the father’s nominated 12 days per month. Therefore, the current Orders have already exceeded the recommendations then made by the Family Report writer.
It appears that this arrangement had been in place for over a month at the time of trial. There was no evidence that the current arrangement is not working for the child. On the evidence before the Court, the issues are in relation to the parental communication, co-parenting and each parent’s interpretation of the Interlocutory Parenting Orders rather than in relation to any issues for the child himself.
Despite the Family Report writer’s opinion that consistency and stability are good for children, in this particular case it is simply not possible for time to occur on set days. Both parents are on monthly rosters and both parents’ rosters vary or are capable of variation each month.
Whilst the parents each gave evidence of being able to make bids for time, and the mother’s evidence is that she has to date been generally successful in those bids, there can be no guarantee that each month this child’s routine will be the same, regardless of the living arrangements that the Court imposes.
In the event that the Court makes Orders as sought by the mother for alternate weekends and half school holidays, then there is a real risk that the child will spend limited time with the father because the father will be unable to guarantee that he will be able to have every alternate weekend and defined half school holidays with the child. The child would then be separated significantly in time not only from his father but also from his two siblings. I am of the view that would not be in the child’s best interest.
The Orders originally proposed by the ICL for a 2/2/3 arrangement were not pursued and the Orders sought by the ICL in final submissions and the draft provided to the Court were for up to 12 nights each calendar month (as per the current Orders) but with the parents alternating the nomination of the father’s nights with the child. This proposal would see the child assured of regular time with the father and was supported by the father.
If the child was not to continue to spend at least 12 days per month with his father this would very likely mean separation not only from his father but also from his siblings, due to the father’s inability to control his work roster.
S 60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
It is the understanding of the Court that the parents reside relatively close to each other and that the cost of changeovers or the arrangements on a practical level are not the issue.
The mother’s evidence when cross-examined was that at that time she was working six days per month on her current roster. She also gave evidence that for the previous two months she had hardly worked due to covid impacts on the industry.
The mother’s evidence was that when the international flights reopened, she would look at working internationally again, but her ability to work those international flights (which involves at least one overnight absence from City D) would depend on the living arrangements for the child.
It was clear during the cross-examination of the mother that a significant issue for her was that she had no choice and no control over the days that the father had with X – that he was the one making the choices at the current time.
The issues with practicality relate in the main to the rosters of each parent and not to the distance between their homes.
S 60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
Much has been made of each parent’s capacity to meet the needs of the children. The father has raised issues in relation to the mother’s capacity as a consequence of her mental health issues. As noted above, the mother is addressing those issues and I make no findings adverse to the mother as regards capacity.
The mother’s issues in relation to the father’s capacity revolve around her allegations of his alcohol abuse and neglectful parenting. In accordance with findings already made, the Court is not satisfied that there is any need for concern in relation to the father’s capacity to parent.
I have found that the child has had nothing more than the usual unfortunate accidents and that there is no unacceptable risk of harm in either parent’s care. I have also found in relation to the issue of the work colleague, that the father acted appropriately on the evidence before him at that time and again later when further allegations arose.
During the course of cross-examination, the mother was challenged as to why her Orders sought to reduce the amount of time the father spent with the child each month. The mother’s evidence was that she had noticed behavioural changes in the child, she felt X needed more structure and routine. I do not accept that any behavioural issues with the child are necessarily due to his time with the father. There can be a number of reasons why a child experiences behavioural issue and it is not unusual for a child to be unsettled around the time of transition between homes.
The evidence is that the parties have undertaken courses and have attended upon Ms Q to improve their co-parenting. They have also utilised the Talking Parents app as recommended by the Family Report writer. Despite that the parents have not been able to reach a final agreement in relation to the appropriate outcome for this child.
The evidence of both parents is that there have been periods of time when they have agreed and co-parented well. For example there were six months in 2020, prior to the events of 14 September 2020, when the parents agree that their communication and co-parenting was positive. The events of the 14 September 2020 together with the subsequent domestic violence Applications, Protection Order and criminal complaints and criminal charge have put paid to that at present.
Nonetheless, it is clear that these parents do have that capacity to communicate and co-parent and so the issue for me to decide is whether it is in the child’s best interests that the parents have equal shared parental responsibility.
The father has a history of parenting. He has two older children from a previous relationship with whom he spends significant and substantial time. He is the experienced parent of these two children.
The Family Report writer noted that the mother has a history of anxiety and depression. The Court was not troubled by that issue. In a case such as this where a parent has actively sought to manage their mental health issues, and where there is a psychiatric assessment expressing an expert opinion that those mental health issues do not impact on the capacity to parent, then the mother’s mental health is not relevant to my decision regarding parental responsibility or the living arrangements for this child.
The Court is satisfied that both parties are loving and devoted parents to the child and have the capacity to meet his needs.
S 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The child is almost four years of age and is a male child.
The father’s two sons from his previous relationship attend at Suburb C State School and the father’s proposal is that the child also attend at that school, noting that the father lives in Suburb C.
The mother lives in Suburb J and proposes that the child attend F School, or in the alternative G School. It appears however that the mother is not in the catchment area for G School.
The father’s compromised position is that the child attend R School. This was in line with the recommendation of the Family Report writer and was accepted by the father during the course of the trial. The mother did not accept that compromise position and retained her position that she wished the child to attend at F School.
In her Affidavit material, the mother’s evidence is that she wishes the child to explore his Catholic/Christian faith, which is “important to his maternal side of the family”[25] and the school is also close to her home which she views as important as she proposes that she remain the child’s primary caregiver.
[25] Mother’s affidavit filed 5 October 2021, paragraph 49
Maintaining the sibling bond is an important consideration but not decisive. Although when at school the child will be at different grades from his brothers and his oldest brother L will be in high school by the time that the child commences school, the opportunity for day to day contact between the siblings and the awareness that they are at the same school, is in my view a significant factor which I will take into account in making my decision about this child’s education. It must be remembered that X is the youngest child in a sibship of three boys.
S 60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right.

This is not a relevant factor for the child.
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The factors relevant to this heading have been addressed by me in some detail previously in these reasons.
There is certainly good evidence that both parents are using their best endeavours to ensure that they meet their obligations as parents and that the child has everything he could possibly need to support him through his life.
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and s 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
This is a significant factor in this matter. Each parent has made significant and troubling allegations of family violence against the other.
In relation to the mother, her trial Affidavit does not deal with the allegations of family violence in any significant detail. The mother gives a more procedural history of what has occurred and annexes her witness statement made in relation to her being charged with the offence of assault occasioning bodily harm[26]. For the mother to not have addressed the allegations of violence in detail in her trial Affidavit is unexpected, particularly as she alleges rape and strangulation offences perpetrated by the father.
[26] Mother’s affidavit filed on 5 October 2021, annexure “2”
The mother gave evidence that she needed to feel safe and wanted the child to be safe. The mother advised that she had asked her employer to ensure that she and the father do not fly together and she said that she did not think she would be safe if she and the father were to fly together.
To make a finding about whether there is any genuine basis for the mother’s fears which should influence the Orders that I make, it is necessary to review of the matter with particular focus on the criminal and family violence factors:-
·On 19 August 2019 the father amended his Response to seek Orders that he spend time with the child.
·On 5 September 2019 the mother filed a Protection Order Application naming the father as the Respondent. That protection order application was withdrawn on 3 October 2019.
·On 1 October 2020 the Police took out a Police Protection Notice (“PPN”) in relation to an incident that occurred on 14 September 2020. That PPN names the father as the aggrieved and the mother as the Respondent.
·On 27 October 2020 the Mother filed a cross-application for a domestic violence Order. On 17 December 2020 the Mother withdraws that application.
·In December 2020 a Protection Order was made naming the father as the aggrieved and the mother as the Respondent as a consequence of the PPN.
·On 3 January 2021 the mother was then charged with assault occasioning bodily harm arising out of the events of 4 September 2020.
·On 29 April 2021 the mother was found to have breached Court Orders.
·On 28 April 2021 the mother made a complaint to the Police that during the 14 September 2020 altercation the father strangled her resulting in a loss of consciousness. No charges were laid as a consequence of that allegation made by the mother.
·On 28 May 2021 the mother filed a complaint that the father had raped her in September 2018. No charges were laid as a consequence of that allegation made by the mother.
Cross-examination addressed the mother’s allegation of rape made on 28 May 2021, in relation to events that occurred in September 2018. At the time of trial the events were some three years ago. The evidence was that at the instigation of Police, a pretext call was made to the father by the mother on 17 June 2021 to attempt to gain some admissions from the father. That pretext call was not successful, with the tendered documents reflecting that the father stated that they had talked and reconciled before having consensual sex. No charges were laid against the father.
It was put to the mother that the Police found the allegation to be unfounded. The mother’s evidence was to the effect that there was not sufficient evidence for the Police to bring charges.
Documents were tendered from the Police subpoenaed material as to the outcome of the pretext call made by the mother in relation to her allegations against the father[27] and the transcript of the pretext call.[28] The conclusion of the Police was to the effect “It cannot be proven that the offence has not been committed, merely that the sufficiency of evidence cannot be met and as such, it is recommended that this matter be filed pending new evidence becoming available”.
[27] Exhibit F1 at Tab 5 - 10
[28] Exhibit F1 at Tab 11 – 13
It was put to the mother that she had made the complaints to the Police of the alleged sexual assault and choking out of vindictiveness. This was denied by the mother.
When the mother was asked questions about whether the father was a good father she struggled to answer in the positive. Her response was that she did not know and that she has not seen him parenting the child for a long time now and so could not comment.
When asked if she had anything good to say about the father she said that she thought he loved his children in his own way but ultimately when pressed she said she preferred not to say anything. The reason that she gave for that position was that there was a lot of emotional trauma in the context of her relationship with the father but she conceded that the father could be a good father so long as the child was safe.
During the re-examination of the mother, her solicitor asked her to expand on the fears that she felt and her concerns and the mother did so.
The Orders that the mother seeks would give her complete control. Sole parental responsibility would give her control over all of the child’s care as would having set days for the father to spend time with the child.
The allegation of rape was made some three years after the event, in the context of the mother herself being charged with a criminal offence and named as the respondent to a Police Protection Notice. The parties were also in acrimonious family law litigation, and that brings with it stresses and concerns.
I am aware that the Protection Order was made by consent and without admission. Nonetheless it exists. I also note that the mother has very different evidence in relation to the assault occasioning bodily harm offence of 14 September 2020.
What is troubling in relation to the allegations made by the mother of family violence is in a large part the timings of them. This was summed up in submissions by Counsel for the father as follows:
(d)She has filed two Protection Order applications and has withdrawn both applications;
(e)The rape allegation was made on 28 May 2021. This was some two and a half years after the alleged event, and following on from the Contravention Applications filed by the father being heard on 21 April 2021 and the Mother being found to have contravened on four occasions without reasonable excuse;
(f)Based on the statement of witness annexed to the mother’s trial affidavit, the mother’s allegation that she was choked on 14 September 2020 were not reported to the Police until 28 May 2021, after she had been charged with assault occasioning bodily harm arising out of those same events.
The father addressed the allegations of rape during the course of the cross-examination. The Court was satisfied that the responses that he gave were honest and forthright. As previously stated I prefer the father’s evidence to that of the mother for the reasons stated.
S 60CC(3)(l) 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.
I note that Orders have been made on a total 19 occasions since the Mother filed an Initiating Application on 26 January 2019. The cost, both emotional and financial, of these proceedings and those numerous court appearances must be enormous.
Final Orders are required to give this family certainty and a pathway forward.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant.
I have nothing to add here.
PART 5: DETERMINATION
Parental Responsibility
In accordance with s 61DA(1), when making a parenting Order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence. In this case there is a Protection Order in place naming the father as the aggrieved and the mother as the respondent. The mother is also facing a charge of assault occasioning bodily harm.
The mother has herself made allegations of family violence perpetrated by the father including sexual assault and choking.
This is therefore a matter where the presumption of equal shared parental responsibility does not apply[29]. The mother seeks Orders that she have sole parental responsibility while the father seeks Orders for equal shared parental responsibility. The ICL supports the mother’s position while the Family Report writer proposes equal shared parental responsibility.
[29] s 61DA(2)
As the presumption of equal shared parental responsibility does not apply, I then move to consider whether I believe it is in the best interests of the child to make an Order for equal shared parental responsibility. In doing so I considered whether sole parental responsibility is in the best interest of this child.
During the course of submissions, Counsel for the father noted a number of other factors which he argued contra-indicated sole parental responsibility being granted to the mother. This includes as follows:
(a)the evidence in relation to the mother’s resistance to the father spending time with the child on his birthday in 2019. I note also the father’s evidence from the witness box that he had not yet spent a Christmas Day with the child;
(b)the mother threatening a DVO when the father posted a photo of himself and the child on Facebook;
(c)The incident of 19 June 2019 when after a Court event the father emailed the mother in relation to the child’s availability and the mother responded that the father’s time would need to be supervised. That when the father disagreed a DVO was again raised by the mother;
(d)When the father filed Court documents seeking Orders in relation to his time with the child, the mother put him on notice that she intended to lodge a DVO as well as name his older boys in the Notice of Risk – “and child welfare authorities will be notified immediately”[30];
(e)The fact that the mother had been found to have breached Court Orders on four occasions;
(f)The existence of the Protection Order and criminal charges against the mother.
[30] Father’s affidavit filed 14 October 2021, paragraphs 27 - 30
I note that there are communications outlined earlier in these Reasons which show the mother being reactive in what I find to be an aggressive and threatening manner. The submissions for the father were to the effect that although the mother alleged that she was fearful of the father that her conduct said otherwise. I accept those submissions.
I am not prepared to make an Order for sole parental responsibility to the mother due to that reactive behaviour, taken together with the existence of the Protection Order, the criminal charge she faces, the time line as regards the mother’s complaints and the procedural history in the domestic violence Courts. I formed the view that the mother could not be relied upon to facilitate the father’s relationship with the child because of those matters.
Submissions were made on behalf of the mother to the effect that the Orders sought by the father require a great deal of communication and co-operation and were unworkable. I considered that as it is of great concern, however I formed the view that whatever Orders were made a great deal of communication and co-operation would be required due to existence of two monthly rosters. To suggest otherwise simply ignores the reality of the situation.
The mother’s Counsel also pointed to communications from the father around the mother’s breach of Court Orders in October 2019 as an example of inappropriate communications used to control the mother. In fact it was the Court Orders that were controlling the mother, not the father. Further, in reviewing the communications annexed to the parties’ Affidavits I find that both parties have at times been robust in their communications and I am overall more troubled by the tone and content of the mother’s communications to the father.
I then considered whether it would be in the child’s best interests for the father to have sole parental responsibility. While I have more confidence that the father would exercise sole parental responsibility judiciously, the mother is currently and will be for some time the primary caregiver for the child. If the father were to have sole parental responsibility, that makes the mother’s ability to meet this child’s needs complex, particularly in the context where the father is an airline worker and may be absent when authority is needed.
In the circumstances outlined above, I am of the view that it is not in the child’s best interest that the mother have sole parental responsibility nor for the father to have sole parental responsibility.
As the mother is at the current time the primary caregiver for the child and has been throughout much of his life, I am of the view that it would not be in the child’s best interest if she was not actively involved in the decision-making for him.
X is a child who has two parents who love him very much and who are both very involved and committed to his care. They have a proven history of a capacity to co-parent. The father also has an unchallenged ability to co-parent with the mother of his two older children. I am satisfied that if I make the Orders the parties will find their way back to positive and respectful communication with the assistance of the Talking Parents App and mediation – should mediation or co-parenting counselling be necessary.
I will also make Orders that each parent be solely responsible for decisions regarding the child’s day to day to care. That is, each parent will have the ability to choose for themselves matters such as who will babysit the child, what he will eat, his bedtime and so forth.
Given X’s “quirks” I trust the parents will continue to exchange information via Talking Parents in relation to changes to his routine and any issues that arise and work together with any medical or specialist resources.
I find that for all the above reasons that an order for equal shared parental responsibility is in the best interest of this child.
Living Arrangements
Having made that decision I am then required by s 65DAA(1) and (2) to consider whether to make Orders that the child spend equal time and if not equal time then substantial or significant time with each parent.
Given X’s young age and the evidence of the Family Report writer, whom I found to be insightful as to X’s needs, I propose that at least for now the mother will remain the child’s primary caregiver.
Given the parent’s geographic locations there are no issues as regards the reasonable practicability of equal time in that regard. The issue of reasonable practicability for consideration arises from these parents’ rosters.
I acknowledge that the arrangements for equal time will be difficult, however any arrangement will be difficult because of the fact that both parents are on monthly rosters. It is however important that the child spend significant time with his parents and also his siblings. The child has two older siblings. Those two older brothers spend significant time with their father and it is important they spend significant time with X.
I am therefore of the view that it is reasonably practicable for an equal arrangement to be in place.
As regards whether equal time would be in the best interests of this child, whilst issues have been raised in relation to each parent’s capacity to parent, I am not troubled by the occasional accidents and injuries which have incurred. It is important to consider such events where a child has been injured, but children do have accidents from time to time and I am satisfied that there is nothing sinister in the accidents which have befallen X.
I am also not troubled in relation to the issue of the work colleague who may or may not be a paedophile. As noted earlier, I find that the father acted protectively of his son. I am satisfied the father did and will continue to act protectively in relation to the child.
I do not accept that the father would ever willingly place the child at risk of harm and I have found that neither parent is an unacceptable risk of harm to this child. Further the father is an experienced and hands on parent to his two older boys.
I therefore propose that the father’s time with the child increase now slightly and that it continues to increase such that by the time the child commences grade 2 the parents will have a relatively equal time arrangement. Whilst this is more time than recommended in the first Family Report, in her second report and in cross examination the Family Report writer was more focused on consecutive nights and did not look beyond Grade 1 in any detail.
I am of the view that as the child gets older, the time that he is away from his mother can increase in the usual way, such that by the time he is in Grade 2 he will be easily able to manage a week block with his father during school terms. There is no evidence that X struggles with changeovers or being in his father’s care which would contraindicate such a move. The evidence is that he is a happy and healthy little boy who thrives with both parents.
Whatever arrangements are put in place, the parties will need to communicate. If I put in place arrangements for alternate weekends for example, then the parties would need to communicate, because the father would not be able to spend alternate weekends with the child consistently and would be attempting to negotiate make up or alternative time.
In conclusion, I am of the view that ultimately an equal time arrangement is in this child’s best interests based on the reasons above and findings made, and in particular the following:-
(a)The Family Report reflects that the child has strong and loving bonds with both parents and his siblings and it is important to maintain those meaningful relationships;
(b)I am satisfied as to each parent’s capacity to parent the child;
(c)I am satisfied that the child is not at an unacceptable risk of harm in the care of either parent;
(d)The parents have a proven ability to be able to communicate effectively and I am satisfied that they will do so again for the child’s benefit;
(e)Whilst the father’s employment is variable, so is the mother’s. They are both subject to rosters and the bidding system and that should not be a bar to increasing the child’s time with his father;
(f)To not allow the father to have substantial and significant time, or indeed equal time, would separate the child from his siblings and may impact on his sibling relationship;
(g)While the mother makes allegations regarding family violence perpetrated by the father, she is the only parent who is a respondent to a Protection Order and she is the only parent who has been charged with a criminal offence.
(h)The father makes allegations regarding family violence perpetrated by the mother against him. She is the respondent to a Protection Order and she has been charged with assault occasioning bodily harm. I have considered that but am however satisfied that she is not an unacceptable risk of harm to the child.

The mother does not want to provide her roster to the father and in respecting that request there has been complexity drafting Orders that take into account each of the parties’ bids for time away from work.
I therefore make Orders which are in general terms as sought by the father as to the amount of time but with a build up to the 15 nights. I have established a build-up in time as I accept the submissions made on behalf of the mother that a leap from 8 to 15 nights per month would not be in this very young child’s best interests. The build-up allows a period of adjustment for this little boy until he is of an age where more time away from his mother (as his primary carer) is not only manageable but enjoyable.
I have made Orders in terms of the ICL’s proposal for the parties to have the rotating power to have first option. That allows both parents the opportunity to control the days that the child is in their care on alternating months. This was ultimately opposed by the father due to his concerns about the mother’s ability to promote his relationship with the child. The submissions for the mother were that the rotating months may create difficulties where for example one parent always had the options for December. I am however of the view that the rotating option best allows each parent input into their time with the child and allows them each to plan well in advance as the evidence was that bids can be put in for periods well in advance.
I am of the view that it is in this child’s best interests that neither parent have sole control of living arrangements – that both parents have the capacity to make those important choices for him and about with which parent he lives and when through the bidding system. I have alternated the options between odd and even numbered years as to which months the parents bid for. In this way they will each in alternate years have the opportunity to choose the time on important months such as December.
School Holidays
I propose to make Orders in terms of the ICL’s proposal as regard school holiday time, just extending the notification time for this year to allow the parties time to consider and if necessary consult.
I am content that the child spend block holiday time with his parents as of the 2022 school year, although X will not have commenced formal education.
I do not accept the mother’s proposal for school holiday time. That proposal only allows a slow build-up of time for the father and the child during school holiday period.
I accept the evidence of the Family Report writer that block holidays are different in that there are activities and events occurring which make the block time easier for the child to manage.
The father had not made provision in his Outline of Case document or Amended Response for any block holiday time but in submissions from his Counsel, the father accepted that holiday Orders would be appropriate provided they were mutual Orders and there was no distinction between the two parties.
In making my decision that school holiday time should commence and that it is in the child’s best interest to spend block holiday time with each of his parents I have been very much guided by the recommendations of the Family Report writer, the evidence of the parties and the need to ensure that the child spends holiday time not only with his father but also with his siblings.
Special Occasions
The mother sought detailed Orders in relation to special occasions.
The father made no provision for same but in submissions he was content with the mother’s proposals in relation to special time generally speaking.
The father proposed that changeovers take place in the afternoon rather than in the morning, as this would allow either party to undertake work during the day and still be in a position to collect the child. The father also opposed the Order sought by the mother that if he was unable to care for the child on special occasions that he would return the child to the care of the mother or her extended family. It was submitted and I agree that each parent should be able to make their own arrangements and not be accountable to each other. Further, the child has brothers whom he can spend time with on special days if his father is unavailable.
The Independent Children’s lawyer proposed time occur on special days with provision for the parents to nominate the times for changeovers. I am of the view that this leaves to much room for further dispute where there is not a set time as a fall back in case of disagreement.
I find that it is in the best interests of the child given his young age and his close relationship with his parents and his siblings that the provision be made for special occasions. I therefore in the main make the Orders as proposed by the mother with the amendments to the commencement time as proposed by the father but have also made an Order which allows the parents to vary changeover times to ensure that contact does take place on special occasions.
The Orders also reflect that there may be occasions where the child is in the care of third persons or one parent or the other may need to opt out of time due to work or other commitments.
I have not made the Orders proposed by the mother for birthday parties. The child’s attendances at such events should be facilitated by the parent who has the child in their care on those days. It is a matter for the parents to ensure that they forthwith provide the invitation to the parent who will have the care of the child at the time of the birthday party so that X does not miss out.
Changeovers
In relation to changeovers, each parent seeks that on school or day care days, handovers are to take place at that location.
On non-school days the mother seeks the handovers take place at Suburb K Library and where the library is closed, it take place at Suburb C McDonald’s. The father proposes on all school days the changeover occur at Suburb C McDonald’s. The ICL proposes that changeover locations on a non-school day be as agreed.
In this particular case, the mother lives at Suburb J and the father lives in Suburb C. In terms of distance this is not significant. The distance between Suburb J and Suburb C McDonald’s is approximately 10kms, possibly less. I did not find that this is a significant cost or convenience issue for either parent in relation to travel as regard handovers.
I note however that Suburb C McDonald’s will be open seven days a week and there will be no need for a fall-back position. I therefore find it most appropriate and practical that handovers take place on a school day from the child’s school or day care and on a non-school day at Suburb C McDonald’s.
I will not make Orders limiting who can attend to changeovers for the parents. Each parent should be able to use an agent, friend or family member and authorise the school and day care to allow that. It is a matter of common courtesy to notify the other parent who will be conducting changeover in advance and this will reduce any risk of conflict or confusion at the actual changeover in the presence of the child.
I will not make Orders proposed by the mother about respecting the child’s wishes or “forcing” him to travel or spend time with the other parent. There will be Court Orders in place and they must be complied with. Certainly there is no evidence of reluctance or fear for X moving between homes – quite the reverse.
Education
The mother proposes that the child attend either at F School which is a Catholic school or failing that, at G School. The mother preference is that the Child attend at a Catholic school so as to have the ability to explore the Christian faith which is important to the maternal family. Whilst it is important for a child to explore their family’s faith that is not the only factor which I must consider in deciding a school. Further there are other ways to explore your faith outside the school system. For those reasons I am not persuaded that this issue should decide the school that X attends.
The father proposes that the child attend at Suburb C State College. This is where the child’s siblings attend school and is more convenient for the father.
The distance between F School and Suburb C State College is approximately 11kms. Again in terms of distance, this is not a significant distance and therefore I am not troubled one way or the other as to regards the convenience of the parents.
The issue which I have considered most important here in making the decision as to the choice of school for this child is that his siblings attend school at Suburb C. Whilst this is not something which is decisive, the sibling relationship is important.
I note the Family Report writer’s comments in the first Family Report that she observed “a close relationship between X, L and M”[31]. I find it is in the child’s best interests to have as much contact and communication with his two siblings as possible.
[31] Affidavit of Ms N filed 19 February 2020, paragraph 87
Whilst I acknowledge that by the time the child commences school L will be in high school, there is a campus on the same general location and that M will be at the same school as X for at least one year. The boys will have the opportunity to look out for each other during the school day and catch up at drop offs and pickups.
I find that it is in the best interest of the child to attend the same school as his siblings attend for those reasons.
Communication
The father makes no proposal for FaceTime/video/phone communication between the child and his parents. Neither does the Independent Children’s Lawyer.
The mother proposes a detailed Order but without any specifics as to time and days for such contact to occur however the wording of the proposed Order is in mandatory terms. Those Orders are in my view not appropriate given the young age of this child.
As I propose to make Orders for what will ultimately be a relatively equal time arrangement and detailed provision is made for special occasions I do not intend to make Orders for video or phone communication. I have no doubt that the parents will facilitate calls between X and the other parent at times they deem appropriate and do not intend to mandate any arrangement.
I will make the Orders sought by both parties that they communicate directly via electronic means and will also make the Orders sought by the mother that they not communicate via phone unless it is an emergency or they otherwise agree. Given the issues that have arisen in the past, it is in my view sensible to communicate in writing.
Authorities, Restraint and Specific Issues
The parents are in general agreement about Orders relating to authorities, non-denigration, communication with each other and keeping each other advised in relation to injuries and the like and I do not need to make any findings in relation to those matters. Such Orders are appropriate and in the best interests of the child.
I will not however make the clause proposed by the mother about “actively encouraging” the child to speak freely about “fears” or “concerns”. I am of the view that this clause is not an enforceable Order and further may encourage a parent to question the child about what occurs in the other parent’s home. If X is distressed or frightened for any reason, I have no doubt that both parents will provide the appropriate support and I expect that they would communicate with each other about any such issues as they have equal shared parental responsibility.
I am also content to make a restraint against physical discipline as I am satisfied that is in the child’s best interests, whilst noting that I made no findings that the child is at risk of unacceptable harm in the care of either parent. I accept the submissions for the father that the form of order proposed by the mother is in effect unworkable as it is simply too wide and I intend to make Orders in the more usual narrow format.
The mother has sought an Order that E Medical be the general practitioner for the child and those practitioners at E Medical provide the other parties with information that they are lawfully able to provide about the child and this Order shall serve as such an authority. Counsel for the father did not object to that Order. It is certainly in the child’s best interests that other than in a medical emergency he should consistently attend on the same medical practitioner. This is good practice in that where a child has any issues that all his medical records all be in one place. The Family Report writer expressed that both parents acknowledge that the child has some “quirks” and that this may develop into a medical issue, it is therefore even more important that the child where possible attend at the one medical practitioner. I therefore find that it is appropriate and in the child’s best interests to make an Order in terms as sought by the mother.
The mother sought a number of other Orders as regards controlling the environment in the other parent’s home and their conduct. There is no evidence that either parent would allow the child to call a third person “mum” or “dad”, there is no evidence that either parent has attempted to attend at the other’s home uninvited, there is no evidence that either parent is drinking to excess whilst the child is in their care, and there is no evidence that the parents would leave the child in the care of any inappropriate person – noting the findings made above as regards the father acting protectively when it came to the parties’ work colleague. I therefore decline to make Orders about such matters.
Child Costs
The mother has sought Orders in relation to costs associated with provision of documents or information to child’s doctor health care or other treatment providers and educational facilities, and costs of the child’s schooling including school uniforms and school supplies.
Those matters have properly in the jurisdiction of the child support agency and I do not intend to make those Orders.
Travel
Both parents work in the airline industry. The father is an airline worker and the mother is an airline worker.
Both parents are accustomed to routinely travelling overseas and once the borders open again, each party expects they will be undertaking international travel, at least for work purposes and no doubt for holiday purposes. The mother has proposed Orders that overseas travel with X be allowed.
In those circumstances it is appropriate to make the usual Orders, more detailed than those proposed by the mother, in relation to allowing this child to travel outside the Commonwealth of Australia on the basis that the other parent is appropriately notified, and that each parent do everything necessary for a passport to issue for X.
Neither party has sought Orders as to who is to retain the passport, neither party suggests there is any risk of child abduction, therefore there is no need to mandate which parent holds the passport – they will each have it in their possession from time to time and make it available upon request.
CONCLUSION
X is fortunate to have two parents who love him very much and who are focused on ensuring that he has a safe and happy childhood. They may have disagreed about how that is to be achieved but I am satisfied that his well-being will always be their focus.
Based on the findings and reasons set out above I am satisfied that the Orders that I now make are in the best interests of the child X.

I certify that the preceding two hundred and ninety-one (291) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.
Associate:
Dated: 21 January 2022

File number(s):	CSC 53 of 2019
Judgment of:	JUDGE COPE
Date of judgment:	21 January 2022
Catchwords:	FAMILY LAW – Parenting – four year old child – father is an airline worker and mother is an airline worker – both parents subject to monthly rostering – where father is seeking equal shared parental responsibility and to nominate up to 15 days per month after roster is published to spend with the child – where mother is seeking sole parental and father to spend alternate weekend time with child – where real risk that the child will spend limited time with the father because the father will be unable to guarantee alternate weekend work rostering – where existence of a Protection Order and criminal charges against the mother – where equal time arrangement is in this child’s best interests – where complexity in drafting Orders that take into account each of the parties’ bids for time off work.
Legislation:	Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), Part VII, ss.60B, 60CA, 60CC, 60CG, 65AA, 61DA, 65DAA, 66E, 67B
Cases cited:	Luu & Xia [2013] FMCAfam 35 M v M [1988] 166 CLR 69; [1988] HCA 68 Marchand & Mahony [2017] FCWA 67 Mazorski & Albright (2007) 37 Fam LR 518; [200] FamCA 520 MRR v GR [2010] 240 CLR 461; [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	291
Date of hearing:	1 & 2 November 2021
Place:	Cairns
Solicitor for the Applicant:	Mr Blackburn
Counsel for the Respondent:	Mr Jacobs
Counsel for the Independent Children’s Lawyer	Mrs Bassano

CSC 53 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BOSCO Applicant
AND:	MR SHELTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE COPE
DATE OF ORDER:	21 JANUARY 2022