Bryant and Stapleton

FAMILY COURT OF AUSTRALIA

BRYANT & STAPLETON

[2008] FamCA 451

FAMILY LAW – CHILDREN - With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

MR BRYANT

RESPONDENT:

MS STAPLETON

FILE NUMBER:

MLC

553

2007

DATE DELIVERED:

18 JUNE 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

11, 12, 13, 16, 17 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR WEIL

SOLICITOR FOR THE APPLICANT:

SAINES & PARTNERS

COUNSEL FOR THE RESPONDENT:

MR TESTART

SOLICITOR FOR THE RESPONDENT:

JEREMY HARPER & ASSOCIATES

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That the parties retain equal shared parental responsibility for the child … born … May 2003 (“the child”).
That the child live with the father on a two weekly cycle as follows:
(A)Until the child commences primary school:
(a)    In week one from 9.00 am Friday until the commencement of kindergarten or 9.00am on the following Tuesday save that the father shall ensure that the child attends kindergarten on Monday if it is a scheduled kindergarten day commencing on 20 June 2008;
(b)    In week two from the conclusion of kindergarten or 1.30 pm on Thursday until 5.00 pm on Friday commencing 27 June 2008;
(c)    For one half of the long summer school holiday in 2008/9 on an alternating week basis commencing from 3.30 pm on the last day of kindergarten, and changeover shall be at 3.30 pm each week.
(d)    By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate and the mother to facilitate such calls;
(e)    That all changeovers that do not take place at kindergarten take place at McDonalds or as agreed between the parties.
(B)Upon the child commencing primary school:
(a)    In week one from the conclusion of school on Friday until the commencement of school on the following Tuesday;
(b)    In week two from the conclusion of school on Thursday until the commencement of school on Friday;
(c)    That the regime set out in paragraphs 2(B)(a) and (b) hereof be suspended during all school terms holidays;
(d)    For half of all school term holidays including the long summer holidays at times to be agreed and in default alternating first and second half with changeovers at 3.30 pm on the middle day and during such times the child shall be at liberty to telephone the mother at any reasonable time;
(e)    By telephone communication to the mother’s landline telephone number each Wednesday and Sunday when the child is not otherwise with the father between 6.00 pm and 7.00 pm with the father to initiate such calls and the mother to facilitate them;
(f)     That all changeovers that do not take place at school take place at McDonalds or as may bee agreed between the parties; and
(g)    Any other times as agreed.
That the child shall live with the mother at all other times save that:
(a)If the child is living with the father on Mother’s Day she shall return to the mother from 9.00 am to 5.00 pm;
(b)If the child is living with the mother on Father’s Day she shall return to the father from 9.00 am to 5.00 pm;
(c)If the child is living with the father on her birthday she shall return to the mother for four hours if it is a weekend and for two hours after school if it is a week day;
(d)If the child is living with the mother on her birthday she shall return to the father for four hours if it is a week-end and for two hours after school if it is a week day;
(e)If the child is living with the father on the mother’s birthday she shall return to the mother for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;
(f)If the child is living with the mother on the fathers’ birthday she shall return to the father for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;
(g)Notwithstanding Order 2A(c) and Order 2B(d) hereof:
(i) the father spend time with the child from 5.00 pm on 24 December 2008 to 5.00 pm on 25 December 2008 and each alternate year thereafter, and from 5.00 pm on 25 December 2009 to 5.00 pm on 26 December 2009 and each alternate year thereafter;
(ii) the mother spend time with the child from 5.00 pm on 25 December 2008 to 5.00 pm on 26 December 2008 and each alternate year thereafter and from 5.00 pm on 24 December 2009 to 5.00 pm on 25 December 2009 and each alternate year thereafter.
That pursuant to Section 65L of The Family Law Act 1975 compliance with these parenting orders is to be supervised by a Family Consultant nominated by the Manager Child Dispute Services of the Melbourne Registry of the Court and the Family Consultant may provide a report in any future proceedings at the request of any party.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That a copy of these reasons for judgment shall be provided to the Family Consultant referred to in paragraph 4 of these orders.
That the ICL is requested to forward a copy of these reasons for judgment to Dr K and thereafter the ICL shall be discharged.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
The parties keep each other informed of their e-mail addresses and landline telephone numbers.
Save in the case of an emergency, the parties communicate with each other about the child by e-mail or SMS.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 553 of 2007

MR BRYANT

Applicant

And

MS STAPLETON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties’ daughter was born in May 2003. She has just turned five. She has a loving relationship with both her parents. Presently she spends two out of three week-ends, from Friday until Monday, and each Thursday with her father. The rest of the time she lives with her mother.
The father wants an order for shared parental responsibility and a 50/50 shared care arrangement.
The mother wants sole parental responsibility and for the child to spend from Friday to Monday with her father on alternate week-ends, for half school holidays, and on special occasions.
The ICL supports orders for shared parental responsibility, that the child live primarily with her mother, and that she spend substantial and significant time with her father on about five of 14 nights, half school holidays, and on special occasions.
The main factual disputes are around the parents’ attitudes to each-other and whether they are able to communicate and co-operate sufficiently to share the child’s care and/or the major decisions about her upbringing.

BACKGROUND

The parents both come from and live in W.
The father is 47 years old and self-employed in the Information technology field.
The mother works part-time as an office assistant. She is 45. She has three older children who are aged around 21, 19 and 17. The two older girls live in W with their father Mr Stapleton. The younger son is living in Melbourne. Although the mother is not living with Mr Stapleton, they maintain a close relationship.
The parties’ relationship has been a complicated and tumultuous one. The mother was married when she had an affair with the father, conceived, and gave birth to the child. She did not tell him of her pregnancy until shortly before the birth. She did not leave her husband until January 2004, when the child was seven months’ old. Then she lived with the father, returned to her husband for a day in February 2004, came back to the father until April 2004, returned to her husband, then lived with the father from about July/August 2004 until April 2006 when she and the child went to a women’s refuge.
This litigation started within a week with the father seeking time with the child. It started in a local Magistrates’ Court, was transferred to the Federal Magistrates’ Court, and later was transferred to this Court.

MATERIAL RELIED UPON

The father relied upon:
·His Application for Final Orders filed 12 April 2006
·His affidavit sworn 5 March 2008, filed 7 March 2008
·The affidavit of W Bryant sworn 5 March 2008, filed 7 March 2008
·The affidavit of B Bryant sworn 5 March 2008, filed 7 March 2008
·The affidavit of Ms C sworn 5 March 2008, filed 7 March 2008
The mother relied upon:
·Her Form 1A Response filed 26 April 2006
·Her affidavit sworn 27 March 2008, filed 28 March 2008
·The affidavit of Mr Stapleton sworn 26 March 2008, filed 28 March 2008
The ICL relied upon:
·The affidavit of Dr K sworn 28 July 2006, filed 2 August 2006 annexing Family Report dated 19 July 2006
·The affidavit of Dr K sworn 13 December 2006, filed 21 December 2006 annexing Family Report dated 5 December 2006
·The affidavit of Dr K sworn 30 November 2007, filed 11 December 2007 annexing Family Report dated 21 November 2007.
·The affidavit of Dr N sworn 5 November 2006, filed 9 November 2006 annexing psychiatric report of the father dated 21 July 2006
·The affidavit of Dr N sworn 7 December 2006, filed 22 December 2006 annexing psychiatric assessment of the mother dated 21 July 2006.
Dr N was not required for cross-examination.

RELEVANT LEGAL PRINCIPLES

Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a rebuttable presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
The court is then required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then consider an order for equal time (s 65DAA (1)(c)).
If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)). “Substantial and significant time” is defined in s 65DAA(3), and s 65DAA(5) deals with “reasonable practicability,” providing that the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
It is logical to turn first to the primary and additional considerations for determining the child’s best interests. The factual disputes can best be dealt with within that frame-work.

THE SECTION 60CC(2) FAMILY LAW ACT CONSIDERATIONS

The following are the primary considerations.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Each parent claims the other has tried to undermine the child’s relationship with them. In my view, each has under-rated the importance of the other in the child’s life. I shall return to that. For present purposes, I note that nevertheless, at this stage the child seems to have a strong and secure bond with each parent.
The child was last interviewed by the Family Report writer, Dr K, on 12 November 2007, when she was 4½ years’ old. She told him that she “lives with mum and dad”. She spoke positively about both parents and both households. She said she liked living with both her mother and her father. She said she did not miss either her mother or father when she stayed with the other parent. She presented to the report writer as a well-functioning child, who appeared quite well connected to both parents and their families. Her interactions with both parents was warm and positive, although different in each case. In the psychologist’s opinion, that reflected the different personalities of each parent.
There is broad agreement that the child needs to have a meaningful relationship with both of her parents. How to interpret and achieve that is the crucial issue, and the parties’ respective perspectives on it are profoundly polarised.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother’s case is that with the father, she lived with the fear of physical, psychological and emotional abuse. In evidence she said she remains fearful of him.
The father admits there was an incident in April 2004 when the mother was trying to leave his place with the child. The mother described the father grabbing her “…around the throat with his hands…” She said he squeezed so tightly she thought she would pass out, before he pushed her from the home with words to the effect “See how you like it without her”, meaning the child.
The father said he grabbed the mother “on the collar” to “make her look him in the eyes”. In a document, “Annexure D”, attached to his affidavit filed 7 February 2007, in describing the incident, he started by saying, “I have played a lot of football at the highest levels and this time refused to give in to her …” Then at the end of his account of the incident, he wrote:
I regret the incident but to put it [sic] perspective I experienced far worse jumper pulling every Saturday for 15 years with my football team, in the name of sport.
The father’s version and those rather odd references to football lead me to conclude that the father is minimising this incident, and in likening the incident to a tag or a tackle in the course of sport, he shows a lack of insight and empathy.
Although there is no excuse for violence, it is important to look at the context. This was a volatile time in the parties’ relationship. Against a backdrop of the father having to conceal his joy at becoming a father, dealing with the disappointment of his lover not leaving her husband, and then living with the insecurity of her coming and going (and each time the mother returned to Mr Stapleton, the baby went too), it was a pressure-cooker of a situation.
I view the April 2004 incident in the light of those stressors, and in light of the fact that there has been no subsequent physical violence. I do not find that witnessing family violence is an on-going risk for the child. That is not to say however, as the father would want me to find, that when the mother took the child in April 2006 and went to a refuge, that she did no simply in a deliberate attempt to gain some tactical advantage. I accept she was fearful.
The mother had once experienced violence in the context of trying to leave with the child. And she has a timid or fragile disposition. That is not a cause of criticism. It does not suggest a psychiatric illness or personality disorder. The evidence is clear that she has neither. But having read and heard some of the father’s intemperate allegations about her mental state, coupled with the expert evidence about him, I accept that he is as critical and over-bearing, as the mother is fragile. The very high probability is that the mother genuinely felt over-borne, and was frightened as to the risks to her and vicariously to the child, unless she left in the secretive way that she did.
So far as the child is concerned, the evidence leaves me troubled by both parents’ lack of insight as to how emotionally abusive their behaviour to her is and has been. I will discuss in more detail below how the mother has failed to show a genuine appreciation of the child’s need to spend significant and substantial time with her father, and how the father lacks insight as to how disrespectful he is of the mother’s role with and value to the child, and how abusive his communications with the mother can be.
I must now consider the additional considerations.
(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 very young. Her views, so far as relevant, are set out above from Dr K’s assessment. I am left in no doubt that the child enjoys and needs substantial time with each parent. However, the precise number of days or nights with a parent is not likely to be what absorbs her thinking, as it does her parents’. I note she describes herself as “living with” both parents, even though she does not have equal time in each house-hold. It shows her comfort with the present arrangements.

The child’s delight in what both her parents have to offer, and her comfort with the current arrangements, are important elements to weigh with the other factors.
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)   any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The circumstances of their relationship got the parents off to a terribly difficult start in terms of parenting. As noted, the mother was married with three growing children, and unexpectedly pregnant to a lover her family knew nothing about. Once they did know, her life was turned upside down. Her three children were distressed and angry, and rejected her to varying degrees. Then she lived off and on in this difficult relationship with the father. For his part, the father was largely robbed of the joy of awaiting his daughter’s birth, was unable to enjoy her publicly during months that her parentage was (at the mother’s request) concealed from the world, and he must have endured enormous insecurity with the mother going back and forth between the two men (baby in tow).
I am concerned that, whatever the mother has thought of the father, she was disruptive to, and disrespectful of his role in the child’s early life. I accept the father had been lovingly involved in parenting the child whenever she and the mother lived in his house-hold, but after separation the mother at first refused any but the shortest periods of fully supervised contact. He must have felt hurt and frustrated.
I am also concerned by the father’s unrelenting and vicious criticism of the mother. It is directed to her as a person as well as a parent. He has never acknowledged the mother as doing a wonderful job with their daughter, until he felt obliged to say something positive when pressed in evidence. Even then his response was tepid, and was evidently mainly directed to furthering his own case, rather than presenting a genuine compliment to her.
I shall return to the parents’ attitudes to each-other. It is a significant weakness in their respective capacities to parent the child. For present purposes I note that the proof of the child’s good relationship with both her parents is the simple love and confidence she expresses about both of them and that she seems to be happy and thriving. As Dr K put it in his 21 November 2007 report:
It should be recognised that [the child] continues to progress well. She appears to be emotionally stable. There are no behavioural difficulties. [The child] appears somewhat advanced for her years. She is well integrated into both her mother’s and her father’s homes, and respective families. [The child] is obviously a well cared for child, and her progress is a testament to both parents’ care of her.
The mother raised a concern that the child has recently started to tug at her finger-nails, which her mother interprets as caused by anxiety. I would not be surprised, particularly with the tension surrounding this case. This little girl is at the centre of an awful tussle, spending a lot of time with two warring parents. That she overall copes as well as she does is the miracle. The evidence cannot lead me to conclude that the blame for any anxiety felt by the child is caused only by one side of the family.
Dr K then addressed the different parenting styles as follows:
As was identified previously, the relationship that [the child] has developed with each parent is, in part, representative of the parents’ personality styles which are quite different. The mother presented as quiet, unassuming and somewhat cautious, with a tendency towards being over-protective, and the father presented as more anxious, active and slightly obsessive in his approach.
Observing the parents in the course of this case confirms how different they are. They are like fire and ice. The father is confident, loquacious and opinionated – to a fault. The mother is retiring and withdrawn – to a fault. But there is no question that each parent has much to offer their daughter. I am confident that each is capable of parenting the child on a day to day basis. All of the evidence leads me to conclude that. Although the mother is the more cautious, and the father the more “laissez-faire”, neither style is fundamentally flawed or detrimental to the child’s well-being.
I do not accept the mother’s evidence that the father is unable to care safely for the child. She catalogues her concerns at paragraph 167 of her trial affidavit. She recounts many small matters, such as allowing the child to play too roughly with and thus provoke the dog, and more serious matters, like the father’s moodiness. She was tested in detail on those various complaints.
I am left in no doubt that the mother has some genuine concerns, given the combination of her anxious disposition and her negative experiences of the father. She does not trust him. His on-going belittling of her does nothing to improve that situation.
However, the reality is that the mother left the child in her father’s care while she worked during the relationship. The reality too is that the child has been safe and happy spending substantial and significant time with her father in recent years. Her mother seems to find it hard to grasp and accept that.
I also do not accept the picture of the mother built up by the father, as a person virtually incapable of offering the child any stimulation at all, but instead, a sad, isolated existence in which as he and his family put it, the child would be “emotionally stunted”. Having always been in her mother’s primary care, the child is anything but emotionally stunted. The father is the first to say that. Of course the thrust of his evidence is that she has been “saved” by her time with him. That over-simplification is not insightful on his part.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
This factor is particularly important in this case. The child needs to be free to love and enjoy each parent and the positive things they have to offer. Her parents have such different parenting styles. To reach her potential, the child needs the substantial input of both.
It is also essential that I analyse the possibilities of on-going co-operation, discussion and communication between the parents, in determining how their responsibilities for the child should be apportioned, and in particular whether they would be able to foster her best interests in a 50/50 shared care arrangement.
From one perspective the parents have done well. The child has a good relationship with both of them. They must take credit, although given behaviours on each parent’s part that I am about to consider, I suspect that the child’s natural resilience has played a major part in protecting her from their conflict.
I have already noted that aspects of the mother’s behaviour concern me when it comes to her capacity to facilitate a close relationship between the child and her father. The father would have me believe that the mother deliberately and mischievously conspired to cut him out of his daughter’s life, from the moment she left without telling him where they would be, without making arrangements for him to see the child, and when she insisted initially on supervised contact. The evidence simply does not support such an extreme account of the mother’s attitude.
First, as noted above, I accept that she was genuine in her concerns when she left and went to a refuge. Secondly, after the first Family Report, she did consent to the child spending substantial periods of time with her father, and supervision was no longer an issue. Thirdly, the child has spent more time with her mother than with her father, but clearly has felt free to love, respect and enjoy her father. The concerns maintained by the mother have apparently not reached her daughter, who has shown confidence in her father’s care. In addition, I was impressed by the genuineness of the mother’s spontaneous answers about how she dealt with the topic of the father and his family with the child.
I found the mother’s evidence open and forthright on this topic. She described how she included the father and his family in the child’s nightly prayers, how she made sure that the child rang her paternal grandparents and cousins for birthdays, and how the child felt free to talk about her father and his family in a natural way, for example telling her mother during a recent supermarket visit that her paternal grandmother had “run out of chocolate topping” and laughing that “grandpa had eaten it all”. It was not only the sincerity in the mother’s manner that impressed me, but there was also some corroboration for it in the paternal grandmother’s evidence. Although the paternal grandmother was overall heavily biased in favour of her son, she had to concede that occasionally she had been able to make direct arrangements with the mother for the child to play if her other grandchildren were in town, or otherwise to come to their home for an impromptu play.
All that said, the mother’s blind-spot as to the child’s safety and care with her father is troubling. I am satisfied it is largely because of her own experiences with him. The mother strikes me as quite damaged by this relationship. I accept it is a relationship that she ultimately found to be psychologically abusive. There is such an obvious mis-match and imbalance in the parents’ respective personalities. The father is as over-bearing as the mother is timid. I accept from her that to have his repeated attacks upon her as a parent and as a person, undermined, and continues to undermine her confidence in him, and most likely accounts for how difficult she finds it to see the good in him as a parent.
It is no surprise either that the mother’s views as to their capacity to communicate with each other are coloured by the way she is treated. When cross-examined by the ICL, the mother conceded that recently they had been able to reach agreement on major issues like education and they have not been in significant dispute about religion. But it was apparent that the process had been painful along the way. And communication obviously remains an unresolved problem in relation to day to day issues, a recent example being in relation to the child’s recent birthday arrangements.
I am critical of the mother for the way she handled an issue in relation to the child’s kindergarten. The father had enrolled the child in a kindergarten when she was just a baby. At the start of last year, he started her in the three-year-old program, held on the one day per week when she was with him. At his request, the mother visited the kindergarten. She did not like what she saw. She enrolled the child in another kindergarten, in another three-year-old program, on one day per week. She did not tell the father about it for several months.
The mother claimed that she did not tell the father because he had enrolled the child without discussion with her in the three-year-old program in his time, and she believed that she could enrol the child in a three-year-old program in her time. That was inappropriate. The father had every reason to be upset when he discovered it. Fortunately for the child, the issue has since been resolved with the parents agreeing for the child to start at B School this year. Both parents are happy with the program offered to her. Although I appreciate that the mother would have found it difficult to broach the topic with the father, given their communication issues, she was wrong not to discuss the kindergarten enrolment with him.
The father’s case is that he is willing and able to facilitate and encourage the child’s relationship with her mother and that he and the mother are able to co-operatively parent the child, with what are improved methods of communication between them.
At paragraph 30 of his trial affidavit, he swore that there “has been some improvement in communication between [the mother] and I in recent months.” He noted that Dr K considered the communication book provided some evidence of that. He noted they had attended counselling for seven months with clinical psychologist, Ms P. He noted communication and dispute resolution agreements in place, including an agreement for weekly telephone calls to discuss issues in relation to the child. He cited examples of other parental co-operation facilitated by counselling, including for the child to go to Queensland for a 10-day holiday with him in September 2007, email communication, the use of a communication book for the parents to inform each other of every day activities and concerns, resolution of a number of parenting issues such as bed-time routine and bottle and dummy use, and both parents taking the child to a physiotherapist to examine her leg.
Sadly, the cross-examination exposed actions and words contrary to the father’s professed genuine willingness and ability to encourage the child’s relationship with her mother, and in particular, contrary to a genuine willingness and/or ability to work co-operatively and respectfully with her.
There were very many examples of the father’s extremely low opinion of the mother, not just as a parent but also as a person, and his disrespectful attitude towards her, so that I proceed only by way of illustration.
In the course of interim proceedings, he swore a lengthy affidavit on 6 February 2007. It was filed on 7 February 2007. He was unrepresented at the time. He said it was subsequently withdrawn, but I will return to that. Annexed to it (as Annexure D) is another affidavit not otherwise filed by him. Both documents contain his assessments of the mother. They are harsh, acrimonious, vindictive, and destructive.
By way of illustration, near the start of the affidavit he described the mother as “a parent who hates their former partner more than they love their child…” (see paragraph 4). Then at paragraph 71 he swore:
I believe [the mother] uses our child to fulfil her own psychological needs and hide her own social maladaption. This inability or unwillingness to distinguish between our child’s reality and her own needs and wishes seriously compromises her capacity to promote the development of [the child’s] individuality. I am concerned that the mother’s overdependence and tendency towards instability, depression and anxiety will affect her ability to raise [the child] in a consistently loving, nurturing and stable way. The mother’s clinically significant interpersonal relationship problems raise serous concerns about her ability to develop healthy self-esteem and fundamentally sound relationship dynamics and expectations in our child. This is evident in the mother maintaining a 25 year fantasy romance with me despite being married to another man and bearing 3 children by him. I am concerned the mother’s pathological shyness will prevent her promoting our child’s social adaptation. I think her overprotectiveness will prevent her being able to provide adequate social, emotional, perceptual, and cognitive stimulation. I fear this lack of appropriate development opportunities will result in [the child’s] social withdrawal, pathological shyness, inappropriate or lack of emotionality, and an inability to form normal emotional attachments.
At paragraph 77 he wrote:
I am greatly concerned that [the mother] not obtain sole custody of our daughter. I believe this would be a lifelong catastrophe for [the child]. Specifically I am concerned that the mother’s over worrying, over reacting style of parenting, lifelong lack of self confidence, insecurity and inferiority will prevent her effectively interacting with [the child] and the outside world to adequately support [the child’s] self-esteem development. I am concerned that the mother’s interpersonal relationship difficulties, feelings of victimization, histrionic exaggerations and tendencies to blame others rather than accepting responsibility for her own behaviour will be passed on to [the child] if she is allowed sole custody in isolation. I am concerned that [the child] will not be encouraged to achieve her potential. I am greatly concerned with the parallels between [the mother] and her relationship with her mother. [The mother] lost her father when she was also three years old; she was also an only child. I am afraid that [the child] will be condemned to another generation of mother daughter bondage as [the mother’s] only friend and future carer. In the same way that [the mother] was her mother’s friend, sleeping in the same bed until [the mother] was 14 years old. [The mother’s] mother has spent most of her life looking after her mother and vice versa. [The mother] draws attention to her own resentful relationship with her mother when she accuses me of wanting to be [the child’s] friend rather than a real parent. This is the same complaint she makes about her relationship with her mother. I worry that [the child] will become another [the mother].
And in an affidavit sworn on 15 March 2007 but not filed (Exhibit M7) the father swore at paragraph 5:
Significantly both parents identify there is a problem [with the child]. The problematic aspect is the different degree of problems identified. I believe this difference is consequent of the mother’s clinically significant mental dullness, which prevents her from recognising the degree of the problems. I believe this aspect of [the mother’s] mental make-up causes emotional mis-attunement, lack of empathy and over-protective fear that impairs her capacity to provide the emotional and psychological nurturance necessary to help [the child] through this separation.
6. Instead the mother makes things more difficult for our child by her isolationism alienation the need to keep everything secret her avoidance her attempts to manufacture the appearance of conflict through non-communication and non-co-operation that all detrimentally affect [the child] unnecessarily.
As to his own relationship with the child, at paragraph 80 of his affidavit filed 7 February 2007, the father swore:
I share a very close and special bond with my daughter. I am the source of virtually all of [the child’s] affection, attention, socialisation and active fun. Being deprived of her father would trap [the child] in uncomprehending pain and emptiness without anyone capable of positively comforting her or picking up the slack. [The mother’s] inhibition, lack of emotionality, inability to interact or communicate makes her incapable of fulfilling my role in [the child’s] needs.
When cross-examined about these and many other similar assertions, as well as particular conduct to which I shall return, the father gave a range of excuses.
One excuse or explanation that he repeated throughout his evidence was to the effect “Well I’m not an expert”. He explained he was just trying to give “his theory” to make sense of why the mother had deprived him of the child. It was ironic that he sought to distance himself from his own assertions, by referring to the obvious lack of expertise with which he had made those assertions. But it was also mischievous. His affidavits were prepared after psychiatrist Dr N’s psychiatric assessment of the mother had been concluded, her report prepared, and an affidavit filed. Dr N had given her a “clean bill of health” overall. The report was not as the father represented.
Another repeated response by the father when cross-examined about his attitude to the mother was that some of his material, such as the 7 February 2007 affidavit, was prepared “without the assistance of a lawyer”. Unquestionably, it is advantageous to a party to litigation to have the expert guidance of a lawyer, to filter instructions, and to prepare material in an appropriate form. That said, a party must in any event present his case fully and frankly. The father prepared this material on his oath, and he presented it to the mother. He made his views about her patently clear. It was evident that he did not regret them for the hurt that the profoundly negative observations might have caused. His only regret appears to be that he did not have the benefit of a lawyer who could have spared him from damaging his cause in this Court.

A number of times in his cross-examination the father offered the excuse that although he had written terrible things about the mother, in fact he had ultimately withdrawn the material. That was his claim in relation to the affidavit of 7 February 2007. That was disputed by the mother. I note that the document was filed in the court. The stamp of the court makes that clear. It would suggest that the affidavit, which has remained on the court file, was not in fact withdrawn. Anyway, it is a lame excuse. The affidavit shows his attitude, and through the affidavit, his attitude was related to the mother, showing callous disregard for even basic respect towards the feelings or capacity of the mother of his child, and certainly not laying any foundation for sound communication about the child’s care.
The father used the same excuse of having reflected and then withdrawn material, in another respect. It was in relation to the parties’ communication book. Certain pages were tendered. He admitted they were written by him, but claimed he had withdrawn them from the book. He alleged that the mother must have taken “the imprint” from the pages and produced them as an exhibit, that is, he had not left them in the book for her to see. There was no forensic examination. However, his version did not ring true.
The father had complained that the mother insisted on a communication book with numbered pages, in triplicate, so that each party could retain their own copy. There was a clear inference that the mother had arrived at that position because previous pages had been removed or tampered with. I accept that the pages clearly numbered 34 to 39 of the communications book (Exhibit M5) are genuine copies of pages she found in the book.
The entry is undated but relates to mid-2007, around the time of a particular incident when there was an issue about the father either tampering with or loitering around the mother’s car. In asking her to withdraw a complaint that she made to police, describing it as “another instance of unreasonable and over-reactive fear”, and talking about the need for them to communicate, the father wrote:
Do you think this is a bit of an overreaction? Do you think that a pattern of such overreaction is becoming evident?
1.    Dropping out of school in Yr 10 because of a fear of talking in front of classmates.
2.    An incident with the dentist when 5 years old prevented returning to a dentist for 35 years.
3.    Running away to a domestic violence refuge in another city with a 2 yr old child because you were afraid of the way I looked at you.
4.    Building up a 25 year fantasy romance with me from a few dates when we were 16 years old.
5.    Enacting this fantasy by initiating an affair and keeping the pregnancy secret for 8 months despite being in a marriage with 3 children.
6.    Quitting work because of your fear of leaving your children with your own mother.
7.    Your 14 months of demands for supervised access despite 2 family reports favouring me. This has never occurred in 50 years of combined experience at Jackson Sweet attorney’s.
This represents a clear mis-use of the communication book. The father was using it to further berate the mother, not to record arrangements for the child.
Finally, the father gave a number of responses in cross-examination to the effect that these various issues were “in the past”, that he was really looking to the future, and that he had been helped by counselling to realise he should “let it go”. However, his recent behaviour gave me no confidence that he was other than mouthing what he believed he needed to say to gain the shared regime that he sought.
First, in his most recent affidavit filed on 7 March 2008, whilst this time drafted with the assistance of lawyers, and whilst carefully acknowledging that Dr N did not believe that the mother was suffering from a diagnosable psychiatric illness or any form of personality disorder, the father still emphasised findings that she was “anxious, secretive, unforgiving, over-reactive, and a person who had avoided difficulties in her life from an early age.” Again he set out a number of historical matters.
I note too that his answers to questions during the hearing did not leave the impression that he had mellowed in his view of the mother. He was cross-examined about having described her in an earlier affidavit as “sociopathic”. He was presented with the ideal opportunity to recant on such an ugly, unreasonable and inaccurate description. Instead, he said it was “just a word”, and again he said he was not really “qualified” to say.
A small but graphic example that exposed the father’s claim that he had moved on, and did not want to continue to criticise the mother, arose in relation to the topic of a miscarriage suffered by her in July 2005. She was pregnant to him when she miscarried a baby boy in July 2005. She swore that the baby was buried two days later and a Requiem Mass was held for him on 15 July 2005.
The father was critical in his material of the mother’s response to the miscarriage. Amongst his criticisms, he claimed that she kept the foetus in the fridge from early July 2005 to 15 July 2005. She dealt with the issue at paragraph 55 of her trial affidavit and annexed church and burial records that supported her version.
When cross-examined about it, and about his “strong belief” that the mother had suffered a mental breakdown after the miscarriage, the father said that now he had seen the records attached to the mother’s affidavit, he accepted her version, and no longer claimed that she had kept the foetus in the fridge. That suggested that he had been able to “move on” as he claimed. However, that apparent capacity to “move on” was severely undermined when he was forced to concede that he had written a letter to the mother’s solicitor, only days before trial, on 25 May 2008, (Exhibit M2) as follows:
Please note my objection to the authenticity of [the Church] burial records marked as attachments “E” and “F” of [the mother’s] affidavit. Please make originals and Father […] available for cross-examination if your client is to rely upon these documents.
When the father said that he was no longer pursuing the issue, that he was “trying to spare” the mother’s feelings, and anyway, it was all one-and-a-half years ago, that did not sit honestly with his request for those witnesses just days before trial.
The father’s recent conduct also undermines his claim that things have moved on so that the parents are now able to parent co-operatively.
First, there was an incident in mid-2007. Although it is a year ago, it is the father’s current attitude about it that leaves me with no confidence that there has been the fundamental improvement between the parties that he claims.
In short summary, the mother had parked her car in the YMCA car park, and returned to find a tyre deflated. Video footage showed the father near her car and bending around the tyre. She reported the matter to the police. He was charged. Ultimately, the charge was dismissed after a Magistrates’ Court hearing. That case was of course determined on a different and stricter standard of proof than required in civil proceedings. I am not re-hearing the criminal case.
I am unimpressed that the father was anywhere near the mother’s car. His explanation - that he wanted to look inside to see if he could ascertain her address - is in my view not a good explanation. And his explanation to the effect that when he saw what he believed was a problematic tyre, as an engineer he was interested to test the valve, also did not impress me. But what impressed me least was that a year later he could not readily concede that, quite simply, he should have stayed away from her car. Moreover, he showed absolutely no insight as to the likely effect on the mother, and indeed he remains very critical of her for reporting the matter to police.
Another example of recent behaviour that undermines the father’s claim that co-operative parenting is possible, arises from his late returns of the child, as set out at paragraph 93 of the mother’s affidavit. She records 32 occasions on which the father returned the child late between April 2007 and February 2008. Nine of those occasions were at the very end of December 2007 or in early 2008. Although the father said he “disputed the accuracy” of the mother’s records, he otherwise explained that as the child was often distressed at the prospect of leaving him, he would sit in the car with her at the change-over point to “relax her”, sharing a little joke, or reassuring her it would not be long until she saw him again. He said it was not a deliberate attempt to keep the mother waiting.
I accept the mother’s evidence that she has recorded the times accurately and truthfully. I found her the more forthright of the two witnesses, and the father’s account of sitting in the car to settle the child did nothing to allay my concerns that the change-overs were in fact delayed. It suggests a strong element of “gamesmanship” in the father keeping the child in the car, and her mother waiting. It undermines the submission made on his behalf that change-overs have generally been problem-free.
In February 2008, the father over-held the child. It was in the context of his belief that “make-up” time was due to him, and that the mother was not reasonable in failing to reach an agreement with him. The rights and wrongs of what occurred is hard to unravel. There was little evidence about it. What is clear however is that the father now says he realises that his actions in unilaterally taking make-up time would have embroiled the child in further conflict. My concern is that as recently as February this year, either he did not appreciate that, or he ignored it.
In March 2008 there was unfortunately an altercation at a change-over at which the mother’s husband attended. Given the complexities in the various adult relationships, it was not surprising that the father was edgy when he saw Mr Stapleton at the change-over. The mother and her husband remain close. The father does not like him.
Where the accounts of the two men differ as to what occurred at the change-over, I accept the evidence of Mr Stapleton as the more truthful. Mr Stapleton impressed me as a genuine and caring man. Despite the turmoil that had been caused in his and his family’s life, due to the relationship between his wife and the father, he seemed to be able to genuinely focus on the child as the innocent victim of circumstances. He showed a clear understanding that her needs must prevail. I accept his account that he took the child to the change-over as the mother had been unexpectedly called into work and last-minute, no-one else was available. I accept too that the father was the aggressor in an unfortunate incident. He pushed Mr Stapleton, lost sight of the child as she went to cross a road without him, and the incident saw the child crying by the end of it. Mr Stapleton’s version was also supported by a security video clip, from which it was obvious that the child started to walk across the road unattended, when the father turned his attention to Mr Stapleton rather than to the child.
Most importantly though, the March change-over incident highlights the suspicion and distrust with which the father still views the mother. His take on this change-over was that as it was shortly before this case was due to start, Mr Stapleton and the mother had “set him up” by sending Mr Stapleton to cause problems, to provoke him, so that his behaviour would then reflect poorly on him in court. I am satisfied that was not the case, and note that even with the opportunity to coolly reflect, the father has not moved from that position.
Finally, as recently as late April/May 2008 there were issues between the parties when it came to arranging a party for the child’s birthday. I am satisfied that when the mother emailed the father on 23 April 2008, suggesting some options, and advising that she had made a tentative booking for a particular venue, he did not respond, nor did he respond to follow-up requests on 25 April, 1 May or 7 May 2008. His complaint was that he would like to have been more involved in the arrangements. That did not adequately explain his slow, and therefore obstructive response to what appeared to be a polite and reasonable request by the mother.
Sadly, what has become more and more clear in the course of this hearing is that there is a fundamental lack of trust between these parents. Their views as to how the child can best be parented are seriously polarised, their perspectives diametrically opposed. When pressed in cross-examination, the father had to concede that in his heart of hearts he believed the child’s best interests would only be met by living primarily with him. Similarly, when pressed by the ICL, the mother had to concede that her concerns about the father were such that in her heart of hearts she believed his time with the child should be supervised. That shows the enormous gulf between these parents.
The Family Report writer, Dr K, encapsulated the parents’ communication problem in his second report (at page 10):
Of particular concern however is the parent’s conflict and difficulties dealing with each other, although [the father] appears to overtly be prepared to negotiate regarding the issues to do with [the child]. It appears to be a negotiation largely on his terms. It would appear that [the mother] largely does not wish to negotiate, because she feels that she will be steam-rolled by [the father’s] approach…
Despite that, in Dr K’s three reports he recommended equal time between the parents. In his first report dated 19 July 2006, he concluded:
In my opinion, [the mother] and [the father] have the ability to be able to work towards effectively caring for [the child] on a shared basis. At times, there are contra-indications with shared-care of younger children, largely for developmental reasons. In this case, in my opinion, the parents’ personal styles and the relationship that [the child] has with each of her parents would maximise progress that she makes and her own development.
Dr K noted the child as well integrated in both households and attached to both parents. He said it was appropriate for the child’s care to be shared, but there was no necessity for her to spend “equal amount of time each week with each parent.”
In his second report, dated 5 December 2006, Dr K noted in his conclusion:
Of particular concern however is the parents’ conflict and difficulties dealing with each other…
He went on to note the parent’s different responses to negotiation, as set out above. He also noted that it was possible that the on-going conflict reflected the fact that a final agreement had not yet been reached about the child’s care. He again concluded that there should be shared care, although not necessarily equal time in each household.
In his final report, dated 21 November 2007, Dr K noted:
The current evaluation continues to show [the mother] as the more experienced care-giver. She showed a greater tendency towards focussing on [the child’s] needs and this probably reflects, in part, her personality, but also, in part, her experience in care-giving for over two decades. Nevertheless, the quality of the relationship between [the child] and both parents is positive, and she is soundly attached with both parents, and sees both parents’ homes as where she lives.
As to a shared care arrangement, he concluded:
Normally in children of age 4½ years, it would be unusual to consider a shared-care arrangement, as it is considered that children generally do better with a home-base unless the parents co-operate very well, live nearby and the child’s development is congruent with the tasks associated with shared-care.
Dr K went on to say that the extent of the co-operation between the parents was uncertain, and their reports about the relationship between them were diametrically opposed, as they had been in the past. He referred to the police involvement over the tyre incident and was clear that such issues needed to be taken into account when considering whether there was adequate co-operation between the parents to establish a shared care arrangement. It was material not available to him at the time.
Then, noting the child’s sound relationship with both parents, he concluded that simplifying the time spent arrangements was likely to reduce conflict between the parents and he recommended a week-about arrangement, with an over-night with the other parent in the off-week.
In some respects Dr K’s reports raised as many questions as they answered. Although he said that equal time was not necessarily a part of shared care, in each instance he recommended precisely equal time in each household. Although he said he would not normally consider equal time for such a young child, calling it an “unusual” arrangement, he then recommended it. Although in his final report he referred to the mother showing a greater tendency towards focussing on the child’s needs than the father, he still recommended equal time. He noted on-going conflict between the parents, and in his final report he noted uncertainty as to the extent of co-operation between the parents. Nevertheless, Dr K concluded that “simplifying the time-spent arrangements” was likely to reduce conflict between the parents. I was troubled by the narrow analysis in the conclusion, to underpin his recommendation, particularly since he acknowledged it as “unusual”, and never grappled in detail with the likely impact on the child of the continuing conflict.
I also had reservations about Dr K’s oral evidence, caused in part by the way he answered questions, and in part because he necessarily had a more limited snap-shot of the parties’ relationship and the extent of their capacity to communicate and co-operate, than was available to me in the course of the broader and more detailed evidence.
Dr K seemed to maintain an unduly optimistic approach to the parents’ capacity to communicate and co-operate, despite the fact that in the course of the three reports, their communication did not improve, but arguably worsened. Although in the last report he acknowledged the uncertainty about the co-operation between the parents, and that their reports about the relationship between them were diametrically opposed, he did not seem to deal with that aspect by analysing the likely impact on the child in a 50/50 shared care arrangement.
I was unimpressed that he continued to slide across that important issue in the course of the majority of what was lengthy cross-examination of him. Although he had read the father’s affidavit material (including the affidavit of 7 February 2007, referred to above) in the course of preparing his report, he had not referred to it in his report, not even when considering the parties’ differing versions of the conflict in their relationship. I find that he underestimated the degree of conflict and acrimony between the parties. His optimism that things would improve may not have been misplaced in the first report, but it was by the second and third. Although mediators had helped put in place mechanisms such as a communication book, the tenor of many of the communications and negotiations remained acrimonious and difficult. That seems to have been overlooked by Dr K.
Dr K was specifically asked by counsel for the mother in cross-examination to re-read the material. When asked an open-ended question about how he would describe or regard the father’s affidavit of 7 February 2007 and its attachments, Dr K described it as “unusual, in terms of length”. When asked again, he observed it was “most lengthy”. When pressed further, he said his overall view was that it was “self-drafted, without vetting by a lawyer” and a “pouring forth” by the father. When pressed further again, he did concede that as well as being “long, huge, massive,” it was also “over-inclusive, obsessive.” He said that his interpretation had been that the father was “attacking back” for unfair comments about him. At other times, Dr K said he felt that the documents just reflected the father’s frustration in terms of Family Court proceedings. At one point, when asked about the length of the material, Dr K said “It may well be that she [the mother] has a much longer version.” There was no evidence of that. It was an odd thing to proffer when he had been in receipt of her affidavit material. It gave me the impression that he was defending the father and trying to justify the conclusion in his report.

I was concerned that Dr K struggled to concede – until given many opportunities – that this material lacked empathy for the mother, and was a troubling sign in terms of the hope for co-operation and communication between these parents. He said he did not observe that level of criticism by the father in the course of his evaluation.
By the end of his evidence, Dr K made concessions to counsel for the ICL, which amounted to a “back-flip” on his reports.
Dr K conceded that the distrust between the parents would make it extremely difficult for them to share and co-operate in the child’s care. He conceded that the father’s attitude that with the mother the child would be “emotionally stunted” would potentially undermine the positive effect of the mother in the child’s life. He conceded that the parents’ very different personalities, very different styles, lack of support for each other, and the fact that they see risks to the child in the other’s care, give rise to serious concerns with equal shared parenting. He agreed that the research showed that for children to live equally in two homes, the parents’ flexibility is key, particularly with young children. He also conceded that it was going to be extremely difficult for the child to tell either parent if arrangements were not working for her as she would have issues of loyalty to both.
When questioned by counsel for the ICL, Dr K also agreed with the research referred to in an article by Dr Jennifer McIntosh and the Honourable Richard Chisholm entitled “Shared Care and Children’s Best Interests in Conflicted Separation – A Cautionary Tale From Current Research, (Volume 20, Number 1 Australian Family Lawyer) and in particular the following passage (at page 9):
The Research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:
Parent factors:
·     Low levels of maturity and insight;
·     A parent’s poor capacity for emotional availability to the child;
·     Ongoing, high level conflict;
·     Ongoing significant psychological acrimony between parents;
·     Child is seen to be at risk in the care of one parent.
Child factors:
·     Under 10 years of age;
·     The child is not happy with a shared arrangement;
·     The child experiences a parent to be poorly available to them.
Dr K agreed that if those “parent factors” were found then equal shared care would be contra-indicated, and he concluded that a major change to the child’s current routine could also be of concern.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)     either of his or her parents; or
(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Except between mid-2004 and early-2006, the child has primarily lived with her mother. As just noted, Dr K ultimately expressed the concern that a significant change to the current time apportionment might be difficult for her. If things stay fairly much as they are now, even if configured slightly differently, she is likely to continue to cope very well. She loves being with and is attached to her father but her mother has always been her primary carer.
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These considerations are not relevant in this case.
(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;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
These aspects have already been considered under various other factors above.
(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;
The child has been fought over and litigated over for too much of her life. I hope that these orders will bring closure for her so that she can just get on with being a child.

CONCLUSION

I am satisfied that it is in the child’s best interests for her parents to have equal shared parental responsibility. I am satisfied that the presumption in s 61DA of the Act applies. There was an isolated incident of violence some years before separation. It should not stop the presumption from applying. And in my view the presumption is not rebutted. I am satisfied that the child’s best interests dictate that her parents share that parental responsibility. They each have a great deal to contribute to her, and to decisions about her.
It was urged on me for the mother that the parents’ relationship is such that they simply cannot reach agreements. I have already noted the very significant difficulties in their relationship and communication. However, despite a false start when it came to education, with the help of mediation, they have resolved that issue. They have shown some co-operation on medical issues, for example taking the child to a psychologist at one time, and to a physiotherapist at another time. They have not struck major obstacles in relation to religion. That said, the decisions have been difficult to negotiate. On balance, I take into account that it is important for the child that both parents contribute, and are seen to contribute. Unlike in the day to day decisions where the parents have struggled and it is impossible to have the high-order help of a mediator, that help is available when it comes to major decisions.
I must then consider whether the child spending equal time with each parent is in her best interests. I conclude it is not. The level of acrimony and conflict between her parents is sufficiently high that I accept Dr K’s ultimate evidence that equal shared care is contra-indicated. He had to agree with the research to that effect. The child is very young. She has at all times lived primarily with her mother. Dr K notes the mother’s particular parenting skills. A shift from the current regime to equal time with the father would be a very substantial change for this child who has only just turned five. In the unco-operative and rancorous climate that exists between her parents, in my view it would be contrary to her best interests. Moreover, whilst I have noted faults in both parents, particularly when it comes to their respective attitudes to each other, I am concerned by the on-going vitriol in the father’s attitude to the mother, and concerned that if the child spends half her time with him, her sound relationship with her mother could be undermined. On the other hand, in the present regime, with more time with her mother than father, her sound relationship with her father has been able to flourish.
I must then consider whether it is in the child’s best interests to spend substantial and significant time with each parent. In my view it is. The mother’s proposal for alternate week-ends and a small bit of mid-week time in between is inadequate for a child who has benefited from the time with and her strong relationship with her father. In order for that relationship to continue in a meaningful way, I am satisfied that she needs the arrangements of two years ago to be updated and configured so that she spends longer blocks of time with her father.
This is a case in which I am satisfied that the proposals of the ICL cater as well as possible to promote the child’s best interests. The proposed orders clarify and simplify the arrangements and change-overs, as recommended by Dr K. They increase the child’s block time with her father. They ensure that she does not go for a significant length of time without seeing him. They retain significant blocks of time with her mother. They are expressed in terms of the child “living with” each parent to emphasise the shared role in her life.
A regime whereby the child lives with her father from Friday to Tuesday in one week, and overnight on the other Thursday, will enable the father to be involved at the child’s kindergarten and later school. It will enable the parents to have less to do with each other in that change-overs can largely take place in that neutral setting. It will give the child leisure time as well as school time with her father. And the proposal for school holidays, for that regime to continue this year, but then to change next year when she is of school-age, is sensitive to her developmental stage.
I agree that an order for s 65L supervision may also be helpful, for the parents to have recourse to a Family Consultant if needed.
In this case, one way or another, there were many references to the likely impact on the parties of this case finally ending. Dr K hoped that things would improve as a result. The father spoke of the “incredible resentment” that would occur if he did not get the orders he sought. The mother did not articulate things in that way, but clearly held equally dearly to the orders she wanted.
There is nothing that I can say or do to make the child’s parents like or respect each other. But I do hope that they can achieve an understanding that they have a beautiful child, that they are both responsible for her genetic make-up, both essential to her healthy development and well-being, and that she is the innocent amidst the turmoil of their relationship. She needs them both, and she needs to be left out of their conflict. In that way, she will maintain a meaningful relationship with both of them.

THE ORDERS

The orders I propose, taken mainly from the ICL’s Minutes, subject to submissions as to form, are as follows:
1.That the parties retain equal shared parental responsibility for the child … born … May 2003 (“the child”).
2.That the child live with the father on a two weekly cycle as follows:
(A)   Until the child commences primary school:
(a)    In week one from 9.00am Friday until the commencement of kindergarten or 9.00am on the following Tuesday save that the father shall ensure that the child attends kindergarten on Monday if it is a scheduled kindergarten day;
(b)    In week two from the conclusion of kindergarten or 1.30pm on Thursday until 5.00pm on Friday;
(c)    For one half of the long summer school holiday in 2008/9 on an alternating week basis;
(d)    By telephone communication each Wednesday and Sunday when the child is not otherwise with the father;
(e)    That all changeovers that do not take place at kindergarten take place at McDonalds.
(B)   Upon the child commencing primary school:
(a)    In week one from the conclusion of school on Friday until the commencement of school on the following Tuesday;
(b)    In week two from the conclusion of school on Thursday until the commencement of school on Friday;
(c)    That the regime set out in paragraphs 2(B)(a) and (b) hereof be suspended during all school term holidays;
(d)    For half of all school term holidays including the long summer holiday at times to be agreed and in default alternating first and second half;
(e)    By telephone communication each Wednesday and Sunday when the child is not otherwise with the father;
(f)     That all changeovers that do not take place at school take place at McDonalds; and
(g)    Any other times as agreed.
3.That the child shall live with the mother at all other times save that:
(a)    If the child is living with the father on Mother's Day she shall return to the mother from 9.00am to 5.00pm;
(b)    If the child is living with the mother on Father's Day she shall return to the father from 9.00am to 5.00pm;
(c)    If the child is living with the father on her birthday she shall return to the mother for four hours if it is a week-end and for two hours after school if it is a week day;
(d)    If the child is living with the mother on her birthday she shall return to the father for four hours if it is a week-end and for two hours after school if it is a week day;
(e)    If the child is living with the father on the mother’s birthday she shall return to the mother for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;
(f)     If the child is living with the mother on the fathers’ birthday she shall return to the father for four hours if it is a week-end and for two hours after kindergarten or school if it is a week day;
(g)    If the child is living with the father on Christmas Day she shall spend six hours with the mother; and
(h)    If the child is living with the mother on Christmas Day she shall spend six hours with the father.
4.That pursuant to Section 65L of The Family Law Act 1975 compliance with these parenting orders is to be supervised by a Family Consultant nominated by the Manager Child Dispute Services of the Melbourne Registry of the Court and the Family Consultant may provide a report in any future proceedings at the request of any party.
5.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
6.That a copy of these reasons for judgment shall be provided to the Family Consultant referred to in paragraph 4 of these orders.
7.That the ICL is requested to forward a copy of these reasons for judgment to Dr K and thereafter the ICL shall be discharged.
8.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau.

Associate:

Date:

[2008] FamCA 451

18 June 2008