Burrill and Lander

FAMILY COURT OF AUSTRALIA

BURRILL & LANDER

[2010] FamCA 38

FAMILY LAW – CHILDREN – Best interests – child aged five years – orders previously made to operate for a period of two years – significant changes taken place since that time – each party proposes that the child live with them – each parent recognises need for child to maintain contact with other party – separation of the child from half-siblings – practical difficulties of contact due to geographic distance between parties’ residences – parenting capacity of the mother and level of the supervision provided in her care – developmental (speech) delay and other health issues relating to the child – alleged neglect of the child in the mother’s care – allegations of sexual abuse

Family Law Act 1975 (Cth)

APPLICANT:

Ms Burrill

RESPONDENT:

Mr Lander

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

2007

DATE DELIVERED:

22 January 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

15-16 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Allen

COUNSEL FOR THE RESPONDENT:

Mr Batley

INDEPENDENT CHILDREN’S LAWYER:

Ms Fuller

Orders

The parties shall have equal shared parental responsibility for the child, R (“the child”), born … August 2004.
The parties shall each have responsibility for the day-to-day decisions in relation to the care of the child during the periods that the child is in his or her respective care.
The child shall live with the father.
The father is to have the sole responsibility for making the decision as to the primary school that the child shall attend, but each of the parents is to have the ability to contact the child’s school for the purpose of receiving information, consulting with teachers and receiving reports on the child’s progress.
Except for emergency situations the father is to have the responsibility for matters concerning the child’s medical and dental treatment. The father is likewise to have sole responsibility for any other therapeutic treatment of the child. The father is to provide to the mother in a timely fashion details of the child’s treatment or therapy, and if requested, provide an authority for the mother to contact the medical practitioner, dentist or therapist for information concerning such treatment or therapy.
The father is to take all reasonable steps to foster the child’s relationship with his mother and his siblings and, without limiting the generality of this Order, in particular to facilitate telephone contact between them at reasonable times and under reasonable circumstances and contact by the process known as Skype. The mother is to co-operate in such contact occurring.
The child spend time with the mother during school term as follows:
(a)For two weekends (nominated by the mother not later than 5.00 pm on the Friday before the commencement of each school term) commencing from 6.00 pm on Friday to 6.00 pm on Sunday during such time as the child’s siblings are also in her care.
(b)In the event that any weekend nominated under the provisions of the previous order is a long weekend, then if it includes a Monday, then the time that the child spends with the mother shall extend to 6.00 pm on the Monday and, if it includes a Friday, then the child’s time with the mother shall commence from 6.00 pm on the preceding Thursday.
The child spend time with the mother during school holidays as follows:
(a)For the whole of the period of the school holidays at the end of the first school term in each year from the first Saturday of such holidays at 12.00 pm until 12.00 pm on the Sunday before school resumes.
(b)For one half of each other school holiday period, such time to include Christmas Day in each alternate year.
The child spend time with the mother during such further period or periods as the parties may from time to time agree.
The parents pass to the child unopened any correspondence or gifts given by the other parent or the siblings of the child or other relatives of the child.
The father facilitate telephone contact between the mother and the child between 6.00 pm and 7.00 pm on Sunday and Wednesday evenings during school terms and such other reasonable times as the child may express a reasonable wish to contact his mother or his siblings.
The parties keep each other informed of their residential addresses, email addresses and telephone numbers.
For the purpose of the implementation of these orders unless the parties otherwise agree, the father shall cause the child to be delivered into the care of his mother at the D Station Ticket Office at the commencement of the time that the child spends with her and the mother shall cause the child to be returned to the father at the same address at the conclusion of such period.
The mother is to attend such programme nominated by the Director, Child Dispute Services of the Family Court of Australia, as will provide her with an understanding of the need for effective communication between the parents of this child and techniques to facilitate such contact.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3 of 2007

MS BURRELL

Applicant

And

MR LANDER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The proceedings before the court are proceedings between the parents of R, born in August 2004 and presently aged five years and five months, in which they are seeking orders as to his care.
The hearing of the matter commenced on 10 December 2007 and was adjourned by the Court to the present time. That adjournment was opposed and the Court’s judgment was delivered on that matter on 24 December 2007. This judgement should be read in conjunction with that judgment.
In short however, the parties could agree on orders for joint parental responsibility and for the care of the child for a period of two years. They could not agree then, as now, what the arrangements were to be for him when he commenced his primary education, a time at which they conceded the agreed arrangements would have to cease. This is to occur in 2010.
In this matter the mother lives on the Central Coast and the father lives in central New South Wales.
Each party sought orders that the child live with them and that the child spend time with the other party during school holidays and upon notice being given then on weekends in the area in which the party with whom the child lives resides. The father initially sought an order for sole parental responsibility but in evidence said that he agreed to an order for joint parental responsibility. Specific issues orders and orders in relation to telephone communication are also sought.
The Court concluded that in 2007 it was unwise to make a decision as to the child’s care in 2010 since the evidence pointed to a conclusion that there were likely to be significant changes in the parties’ lives over that period. Consequently, the Court was unable to predict the impact of those changes on the child and the capacity of the parties to care for him in the light of the changes which might occur.
The Court’s view that there would be significant changes was borne out. Inter alia, the following have occurred:
a)The father has remarried.
b)The father’s then very sick father, who was being cared for by the father’s mother, has died. It was suggested that the father’s mother could assist him in the care of the child but doubt was cast upon her capacity to do that, having regard to her commitment to her husband.
c)The mother has moved premises twice, one such move being occasioned by the fact that the child R, having previously caused a fire in his home, caused a further one, which caused major damage.
d)There have been proceedings heard and determined in relation to the care of the mother’s three children by Mr N. Those children are A born in May 1998 and currently aged 11 years, C born in August 2000 and currently aged 9 years, and T born in November 2001 and currently aged 8 years. Those proceedings have resulted in an order that those three children live with their father for three out of four weekends and from after school on Friday to the commencement of school on Monday. Whilst there was a provision in those orders for additional mid week time with those children’s father, the Court is informed that is not occurring, by consent. The children also spend time during half the school holidays with their father.
e)The mother has taken up part time work at a café and is, on the present arrangements, obliged to seek assistance in the care of R on occasions when she works during hours when R is at home. That care is provided by her friend, who was not put before the Court.
f)The relationship between the mother and her male friend at the time of the initial hearing did not continue as the mother had hoped, and has since ended.
g)The father suggests that the mother has had multiple boyfriends since then, however the mother denies that allegation saying that the nominated men are just male friends. I accept the mother’s evidence on this matter.
h)The mother has made allegations that the father’s wife has behaved in a sexually inappropriate manner with R, by getting him to remove her brassiere and “tongue kissing her”. The allegations were made in her affidavit and repeated with great vehemence in the witness box. It was conceded by the mother that some of her evidence was conjecture and assumption. It appeared to reflect a desire to maximise the impact of her other evidence. I accept the denial of the father’s wife that the alleged events occurred.
i)It was clear that the mother would not accept that the events referred to in the preceding paragraph had not occurred. She embellished what R was reported to have said and described it as an incident “when Mrs [Lander] started interfering with my son”. It seems that it has been the cause of an inability of the mother and of the father’s new wife to communicate effectively and has put strains on the communications between the father and the mother. The mother gave evidence that she disliked the father’s wife, although conceding that she did not know her. She denied insulting her in crude terms in the presence of R. However, she did not deny that she was the author of offensive SMS messages.
j)The father has asserted that R has insufficient nutrition in the mother’s care and has procured advice from medical advisors to that effect. The medical advisors were not on affidavit but there was a report from a Dr U tendered without objection which gave some potential weight to the father’s allegation. The mother denied that the child was not fed appropriately.
k)The child R had a speech developmental difficulty, the mother says of a very minor nature and which the father treats with rather more concern and for which the father arranged for the child to attend a speech pathologist whilst in his care. He says that in his care the child is supervised in the speech exercises which have been recommended by the therapist. The inference is that the mother does not do that and which inference the mother denies, however under questioning she said that she completed the exercises provided for her child, C, by another speech therapist, saying that they were the same.
l)C has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and has been in trouble for selling mobile phones. He has been of concern to the school he attends and was withheld from school until additional help could be recruited so that the school could provide for his special needs.
m)The father’s new wife is presently pregnant and is due to give birth to their child in April 2010.
n)The father says that his new wife has a good relationship with R and that in his care he has her assistance as well as the assistance of his mother, if required. He asserts that the child has a good relationship with his mother. I accept those assertions.
o)The child has a relationship of affection with the mother’s other three children, A, T and C. He enjoys their company. He presently is not with them for two weeks out of four and they are with their father on one of the weekends during which he lives with his mother. The mother, it was asserted, sent the child to the residence of the father of her other children on weekends when he was with her. She says that this is not so, with the exception of about five occasions. When asked in cross examination to give details of the occasions she was unable to do so but I accept her version of the number of times R has stayed with Mr N.
p)The relationship between the mother and the father of her other children was considered by me to be poor at the time of the initial hearing of this matter when he was incandescent in his anxiety to criticise the mother. The mother says that that relationship is now good and that they have called an end to hostility and are now working together. The mother says that she continues to have the assistance of R’s great-grandmother in his care as well as that of her friend, E, and the father of her other children.
q)The mother, who gave evidence that she was considering applying for a driver’s licence at the time of the initial hearing, has not done so and now says that she does not intend to do so.
r)The mother, who was unemployed at the time of the initial hearing, is now engaged in part-time weekend employment. She is, she says, able to change her hours of work (which are few) to mid-week hours, to accommodate R’s needs.
s)Expert reports in 2007 said that the relationship between the child and his siblings was not decisive of a decision with whom the child should live. A later expert report tendered in the current proceedings suggests that R does have an attachment to his siblings. The father, in his evidence, says that R is guarded in his talk about what he does with his siblings, but R has complained that they “bash” him. The father is uncertain of what this means and says it may just be referring to boys fighting, which he says he would expect and about which he does not complain. The father further says that if he were to be caring for R he would do what he could to continue the relationship with R’s siblings, inter alia, by the use of Skype. The mother agrees that this is available and she would co-operate in its use for communication between the households.
The Court has, in these circumstances, the task of determining what arrangements for R’s care will best serve his interests.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1975, the father was born, and is now aged 34 years.
In 1978, the mother was born, and is now aged 31 years.
In May 1998, A, the mother’s first child, was born and is aged 11 years.
In August 2000, C, the mother’s second child, was born and is aged 9 years.
In November 2001, T, the mother’s third child, was born and is aged 8 years.
In December 2002 the mother separated from Mr N, the father of her three eldest children.
The parties met in 2003.
In August 2004, the parties’ child, R, was born. He is aged 5 years.
In August 2004 the parties commenced cohabitation.
In 2006 the parties, their son and the mother’s three other children moved their place of residence to central New South Wales.
In September 2006 the parties separated.
On 25 September 2006 orders were made ex parte at the Local Court, Orange which, inter alia, provided the mother to be permitted to relocate with R to the NSW Central Coast.
On 29 September 2006 the relocation order was suspended and R was ordered to live with his father from Thursday to Sunday of each week.
On 20 November 2006 orders were made by consent which, inter alia, provided that in each 21 day period R was to live with his mother for 12 days and with his father for 9 days.
On 24 December 2007, following agreement of the parties as to what arrangements should be in place until R commenced primary school, it was ordered that R live with his mother for two weeks in every four weeks and with his father for two weeks in every four weeks, and the matter was adjourned for a final hearing to late 2009.
Those proceedings came before me on 15 December 2009. Evidence concluded on 16 December 2009 and, at the request of counsel, written submissions were invited, and which were provided in December 2009 and January 2010.

The Issues

The issues raised by the mother in her case outline document to some extent disappeared when the father conceded an order for joint parental responsibility. They were otherwise identified by the mother as being:
(a)Whether or not it is in the best interests of the child to have a relationship with both parents.
It seemed to me that this issue, on the evidence, was no longer an issue, since each of the parties conceded that R should have a relationship with the other.
(b)Whether or not it is in the best interests of the child for the father to have sole parental responsibility for the child.
After the father’s evidence was given that he would accede to an order for joint parental responsibility this was no longer an issue. The Court does not, on the evidence, see reason why there should not be such an order, subject to exceptions on certain matters as hereinafter set out.
(c)Whether the presumption arising from section 61DA of the Family Law Act 1975 is rebutted.
I do not find that the presumption has been rebutted and, in any event, the parties both seek an order for joint parental responsibility. I find however that it is in the interests of this child to make the orders set out above.
(d)Whether on the evidence the presumption of shared parental responsibility should in the discretion of the Court be rebutted for the reason that it is not in the best interests of the child for the parents to have equal shared parental responsibility.
I find that, generally, there should be shared parental responsibility and that is the order sought by the parties. However, I think that in the circumstances of this case and the parties’ respective places of residence, certain matters, as set out in my orders, should be dealt with as special exceptions to such an order.
(e)Whether the child should live with the father or the mother.
This is the substantial matter in issue.
(f)What time the child should spend with the parent with whom he does not ordinarily reside.
The parties were not particularly far apart in relation to the time which should be spent with the other parent once the issue of with whom the child should live was determined.
I find, upon consideration of the facts in this case and in particular the places of residence of each of the parents and their intention to continue to so reside in those places of residence, that it is not practicable for an order to be made, following the enrolment of the child in primary schooling, the effect of which would be that the child would spend other than some weekends and otherwise holiday time with the parent with whom he does not reside. This is the position accepted by the parties and I agree that any other order is neither practicable nor in the interests of this child.
(g)The parenting capacity of the mother.
This has remained an issue.
(h)The extent to which the father is reliant upon assistance from his mother in the day to day care of his child.
The father receives some assistance from his wife and his mother, but discharges primary responsibility for the child’s care when he resides with him.
The paternal grandmother filed an affidavit on 27 November 2009. She deposes to having been involved in R’s life since his birth, and also in the lives of the mother’s other three children over at least the past four years, and in relation to whom she and her late husband contributed significantly to their well-being during the time they lived in central New South Wales.
In that affidavit the father’s mother says she continues to assist the father when required, and continues to see R approximately three times per week. During cross-examination the paternal grandmother said that such time often involved her taking R to a swimming lesson on a Friday or to speech therapy, if the father is not available to take him. However, she said the father undertook this activity more frequently than it was carried out by her. In her oral evidence the paternal grandmother said that she rarely sees the father and R on changeover weekends, but that they would often visit her home on the middle weekend of the time the child was living with the father. When asked to describe what the nature of her usual assistance to the father is, the paternal grandmother said, “I fill in the gaps that he’s either working or he’d be doing something that would make it inconvenient for him to get – to take him to swimming or speech therapy or – yes, I just fill in the role as a grandmother.”
The paternal grandmother was cross-examined by the Independent Children’s Lawyer, during which she said if the child resided with the mother she would “play a supporting role” during holiday time and the time the child spent with the father, and that she hoped she could telephone and visit. She further gave evidence that in the event the child were to live with the father that she “… would be very much supportive that he keep that contact and that line of communication open” with the mother’s household.
(i)Whether it would be in the best interests of the child for the parties to attend a post separation parenting programme.
The father has attended such a programme but it is clear that particularly the mother needs some help to assist her in communicating with the father and his wife in a way which is at least neutral, positive, polite and informative. It is my intention to order the wife to attend such a programme in the hope that it might lead to such a result.

Credit

Each of the parties gave evidence orally and by affidavit.
The mother was an angry witness for much of the time and was on the defensive for much of her evidence. She saw herself as a persecuted person about whom others were seeking to make unjustified criticism. Some of her answers were the product of misunderstanding, such as her belief that a reference to R’s special needs was an assertion that he was intellectually impaired, rather than that he has some developmental delays with his speech. That she was prepared to, with rapid fire style and anger, respond in the way that she did gave me some concern.
She for example said that she had not left R with Mr N on more than five occasions and that she knew when they were. She was, however, unable to subsequently identify those occasions.
The mother’s inability to stand back from her emotions concerning the statements said to have been made to her by R and even consider the proposition that they did not represent what had happened, also concerned me.
Her willingness to embellish even R’s descriptions of what had happened with the dramatic portrayal of a child witnessing a naked women cavorting in front of him when there was no evidence at all to suggest that that had occurred demonstrated a degree of embellishment which cast doubt on other parts of her evidence. I formed the view that some of her evidence was less credible than that of the father.
I was impressed by the father’s straight forward manner. It is rare to get a witness so ready to answer so directly and to make concessions against their own interest. He said that he accepted that his affidavit filed in the proceedings could be interpreted as him trying to be hypercritical of the mother. He said that that was not his intention, and that it was rather to put everything that happened before the Court. He attributed positive aspects to the mother where he could.
The father’s mother was direct in her evidence and measured in her responses. She played an active and assisting role in the care of R, particularly in relation to him undertaking swimming lessons. She, it seemed to me, was doing her best to refrain from unnecessary criticism of the wife and she maintained consistency in her evidence. I accept her as a witness of truth.
The father’s wife was an open, direct and softly spoken woman who did not embellish her evidence and who sought be restrained in relation to her dealings with the mother. She was also restrained in her evidence and sought to say as little as possible in criticism of the mother. I accept her as a witness of truth and, without limiting that, in particular I accept her denials of the events spoken of by R suggesting that she had caused him to unfasten her brassiere strap and “tongue kissed” him.
My findings otherwise in this matter reflect the evidence that I prefer on the issues.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to 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 interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility. I do not consider that an order of the nature described in this section should be made for equal time (and neither party seeks such an order). Such an order is not, in the circumstances of this case, reasonably practicable nor in the best interests of this child. I also find that an order of substantial and significant time (as defined in the Act) to be spent with the parent with whom the child does not ordinarily reside is neither practicable nor in the interests of this child and is not sought by either parent.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Both parties concede that this child should have a meaningful relationship with each of his parents. Each of them was prepared to support such a relationship by not criticising the other and facilitating communication between R and the other. Child and other parent communication for the future was, on the parties’ assertions, by comparison to the other communication problems in this case, not a potential source of distress to the child, or it appears conflict between the parties. There have been problems in procuring communication in the past from time to time with the unavailability of a person at the other end of the phone, but it is now suggested that the Skype method of communication could be used, which the Family Consultant says involving as it does visual as well as aural communication is desirable for a child of this age.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is true that there are no current violence orders. There has been abusive and unseemly language used by the mother to the father’s wife and in the presence of the child R. It reflected no credit upon her and demonstrated an ignorance of the needs and welfare of her son.
There are significant questions of a lack of supervision by the mother. Those questions arise, inter alia, by reason of the two fires lit by R, one of which had some minor consequences when clothing was burnt and the other the major consequence of destroying the mother’s home.
The mother says that after the first fire she took necessary precautions and removed all lighters and matches from the house, save for her personal cigarette lighter which she says she kept in her bag which, when she was in the house, was beside her bed. It was to this bag on the second occasion that the child had recourse to procure a lighter to start the second blaze.
The mother said that she had done what was reasonable and that she could not be blamed for the unfortunate occurrence. It seems to me that whilst the mother’s efforts after the first fire were laudable and accepting that it is not possible to supervise a child every second, there are some lingering concerns as to whether the supervision on the first occasion was adequate.
The mother’s capacity to supervise her children was also subject to question following the attempted sale of mobile telephones by her other children in order to raise money. It seemed to the Family Consultant that those children had discussed the family’s financial situation and, in an exercise of a quasi parental role, had undertaken to rectify it by realising on some available goods. She also says that it may indicate further a lack of supervision of the children by the mother.
R had been diagnosed as having developmental delay in relation to his speech. The father had arranged for the child to have speech therapy whilst with him. He asserts that the child has not improved his speech as much as was predicted and he asserts that the mother’s failure to have R undergo therapy whilst he is with her and put him through his exercises is the cause of that want of predicted improvement.
The mother asserts that she has engaged a speech therapist in contemplation of R living with her. However, in relation to the time so far that R has been undergoing speech therapy she says that she has administered exercises which have been prescribed for C, her son who has ADHD and apparently has some speech problems, from time to time and that they have been also administered by her daughter, in her playing of the role of teacher in games in which R has joined. It was her assertion that the exercises were all the same. No evidence was otherwise brought to support this view.
The mother failed to enrol R in pre-school and the father enrolled R in pre-school which he has attended when with him. He has made friends and acquaintances there.
The child had been taken by the father to a Dr G, a General practitioner who identified some factors which caused him to make a report to the Department of Community Services (“DOCS”), as it was then known. It is asserted that the child suffers from poor nutrition in the mother’s care.
A report from the specialist Paediatrician to whom the child was referred was tendered in evidence.

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 Family Consultant reports on this issue in her Report of 8 October 2009:
“[R] understood that once he commenced school, he could no longer live with both parents and that this matter was to be decided at Court.
[R] stated that he wanted “to live at dad’s house” when asked directly. He gave as his reason as “It’s so beautiful and we play soccer”. However when asked what was good about spending time with his father he stated “I don’t know”. With regard to what was good about spending time with his mother, he explained “It’s so good. Mum takes me to bed, puts me in her bed”.
When asked what it would be like if the Judge decided he should live with his mother, he stated “I won’t see Dad a long time ago” and looked very sad. When asked what it would be like if he lived with his father, he stated, “Not good. So sad”. The impression given with this set of questions was that [R] was expressing his experience of the dilemma that the distance between his parent’s homes placed on him, in that he would not see one parent for what he perceived as a very long period of time. [R] later went on to say that his greatest wish would be for “Dad to get married to Mum again and [the stepmother] can come”.
[R] indicated that he would be sad not to spend time with his siblings and stated that seeing them only on weekends and holidays was “Not good. Not good enough”…”.
R also informed the Family Consultant that his father gave the best hugs in his family and he would go to his mother if he was sad and his father if he was angry and the stepmother is the best story reader in the family.
In a clear indication of knowledge of the degree of hostility by the mother to the father’s wife he said that his mother would, “punch [the stepmother] in the face”. He was otherwise aware of the parental conflict and confirmed “[the stepmother] says nothing about Mum” and that “Mum is kind to Dad”.
The report writer says that:
“When assessed using the post separation focussed story stems, the themes that emerged showed that [R] may view his mother as the instigator of parental conflict and his father as protective, with some aggression showed to the mother by the child in the stories.”
This child is very young and the Family Consultant observed that R had an affectionate relationship with his siblings in his mother’s household and that he would miss them. He has a bond with them. Despite this, he indicated that he would prefer to live with his father though given he could not say why, and given his age this should not be the sole factor in making a decision about where R should live.
I will not ignore what the child says, but I agree that in the decision that I have to make it will only be one of a number of factors and will not bear of itself decisive weight. The child is quite young.
(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)
R has relationships with each of his parents and his brothers and sister. If he continues to reside with the mother he will be better able to maintain and grow the relationships with his siblings. Those siblings are of varying ages and will in due course pursue their own activities one would assume. He will receive the benefits and disadvantages that such a relationship might bring. However, the child also has a sibling about to be born to the wife of the father and R will be less able to develop that relationship in the event that he spends predominate time with his mother.
It seems clear that R would have a greater measure of attention from his father in the event that he lived with him. If he lived with the mother she will, when the children of her prior relationship are living with her, have a different degree of attention from a mother who will then be faced with the responsibility for the care of four children.
In the present scheme of things the mother’s other children reside with their father on three weekends out of four, from Friday to Monday. In addition, those children spend half of each school holiday period with their father.
The loss of those siblings’ company will therefore, if R resides with his father, on current arrangements be limited during school terms to between Monday and Friday and for one weekend in four. It seems to me that, given the involvement of the mother’s other children with their father, whilst there will be a loss of their company for R, that a sufficiently beneficial relationship could be maintained during holiday time and with the weekly contact via Skype proposed by the parties, during school term time.
R, if living with his father, will not have the same contact as he has hitherto had with his great-grandmother, who had assisted the mother in his care from time to time. He probably will have a similar relationship as hitherto in that event with his grandmother who lives in Queensland.
R will be able to maintain a close relationship with the paternal grandmother. The Family Report describes a warm relationship between the child and his grandmother, who plays an active supporting role in his care.
R will have the advantage of an ongoing relationship with his step-mother who is described in the Family Report as having a positive approach to the child and a capacity to engage with him. Her evidence clearly supported maintaining a different role with the child to that of the mother. She gave evidence that she was expecting a child who would become one of R’s half siblings.
That R will experience some sense of loss whichever parent he lives with, given his close attachment to each of them, is not in issue. He may need help in coping with that loss. It is my view that the same sense of loss would be felt by him no matter where he lives. The father, however, impresses particularly with his previous support for his child’s educational needs and developmental difficulties as the more likely to identify and gain help for his son should that problem require such assistance.
Were R to live with his mother he would in addition experience a sense of loss of the contact with his step-mother, with whom he has developed a relationship of friendship and trust and also his paternal grandmother who, as has been said, has been involved in a positive way in his upbringing.
(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
I was impressed with the evidence of both parties as to the desire and recognised need for R to maintain contact with the other party no matter what the decision in this case was.
I was also impressed by the way in which the paternal grandmother had facilitated communication with the mother at a time when communication between the parties was otherwise poor.
The evidence of R’s step-mother gave me confidence that she not only would not stand in the way of communication between R and his mother and her household, but that she would encourage and facilitate it. She also had a clear capacity to differentiate her role from that of the mother, but she also demonstrated a willingness to so act as to serve R’s best interests.
The father has expressed concerns at the mother’s parenting capacity, but in his evidence was prepared to make concessions that some of them were based on assumption and not direct knowledge and otherwise in relation to those concerns, and where appropriate those concessions were expressed in a measured and thoughtful way. The mother had no such reservations about the father and recognised that he was a good father and that R “loved him to death”.
It is pointed out by the Independent Children’s Lawyer and the evidence also is that the father has been proactive in taking steps in accordance with orders made to seek to improve communication and parenting skills. He has undergone parenting after separation courses and introduced the use of a communication book. Although his effort in this regard was not assisted by the mother utilising the book it was, nevertheless, praiseworthy and recognised the need for the parents to communicate in R’s interests. The mother had not yet undertaken any such courses, notwithstanding orders made in this matter and in litigation which followed the making of the interim orders in the proceedings between her and Mr N, concerning the parenting of their children and the recommendation of DOCS. I am not satisfied that her failure to do so was other than from a lack of recognition of the need to do so and a commitment to fulfil those obligations.
It seemed to me that whilst each of the parties espoused the concept of the need to communicate with the other, the father’s view of that need seemed more likely to be accompanied by positive action to give it effect than did the mother’s.
(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
There will be a number of changes in circumstances which will occur in R’s life in 2010. He will commence primary schooling. He will be living with either his mother or his father predominately and will in the latter event have less contact with his mother and the siblings living with her. In the former event, he will have less contact with his father, his paternal grandmother, his step-mother and his expected sibling. It will be natural to expect that R, in either event, will experience a sense of loss. I am, however, confident that the father will take those steps necessary to ensure the child’s ongoing psychological health in that event. I do not, on the evidence given thus far in this matter, have equal confidence that the mother would so act.
(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

These parents do not live close to each other and a process of change of R’s residence for the purpose of spending time with the parent with whom he does not live presents some problems.
The mother does not have other forms of transportation, other than public transport, as a primary option for travel. The father does have a licence to drive and an available motor vehicle. Notwithstanding the suggestion made earlier, the mother says she has no intention of procuring a licence or a motor vehicle and sees no benefit in doing so. This seems likely to make flexibility a more likely possibility given the options for travel at the disposal of the father, were R to live him. However, it would in that event place significant demands on him both financially and in time in order to maintain the relationship between R and his mother.
The current arrangements for changeover for R seem to me to be the best arrangements which, given the travelling ability of each parent, can be put in place. Whatever decision is made there will be a cost of internet communication with the necessary hardware and software to provide ability for there to be Skype discussion between the non-resident parent and/or extended family or siblings of the chid. I do not think that this is a cost which cannot be borne. In these circumstances together with telephone communication I do not foresee that there will be any greater infringement of the child’s right to maintain personal relations and direct contact with each of his parents on a regular basis no matter what decision I make.
(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
Each of these parents has been able to meet the fundamental needs of the child and sufficiently so for the Court to find that on an interim basis there should be shared care of the child. However, events which have since occurred give the Court greater confidence in the father’s capacity to recognise and to act to meet R’s needs, including that R has required speech therapy and which has been provided by the father.
The mother, apart from some inquiries she made, did not provide such speech therapy except in the form of providing exercises (which were appropriate for another of her children) for R to undertake. Her reliance on her own judgment in this regard and her failure to consult in relation to the recommendations of R’s therapist are concerning. It is also concerning that the mother’s failure in this regard was one which was contrary to an obligation cast upon her by the provision of orders requiring each of the parents to ensure that R undertook the exercises prescribed by his therapist.
This attitude to prescribed forms of treatment for children was also evident in the evidence previously given in this matter when the mother conceded that she had abandoned the medication prescribed for C and substituted fish oil for such medication.
Dr P had provided a report expressing some concern about the health of R and the mother, although receiving a copy of the report, did nothing concerning it. She had not taken the letter to her General Practitioner in order to gain some insight into the recommendations or indeed to canvass their reasonableness. Whilst some time has been taken by the mother’s counsel to deal with the evidentiary validity of the report the fact is that it existed and the fact is that the mother knew of its contents and yet did nothing to further explore the problem raised in the report. The mother was apparently unconcerned with the contents of the report of the qualified medical practitioner in relation to R’s weight loss whilst in her care. She relied it seems on her own view that it probably had something to do with his increased activity in her care. In the Court’s view it would have been more responsible to determine whether there was any substance in the assertions by consultation with either or both the reporter or her own medical practitioner. It is this failure which is of concern.
The mother gives some evidence that she has the assistance in the care of her children from her grandmother and a friend “E”. There was no current evidence from the grandmother and it appears that an earlier suggestion that the mother’s mother was returning to the area where she lives has not eventuated. The father, as previously indicated, has the assistance of his mother and his wife in the child’s care. It is noted that his wife will shortly be having a child and presumably the father will have to call a little more on his mother for assistance for a while after that birth. The father’s mother was an impressive witness and gave the Court confidence that the child would have her continuing support.
There was evidence given concerning the ignition of two fires by R in the mother’s care. One caused limited damage and the other rendered his dwelling uninhabitable. The first was a matter of an inattention which I do take into account and the second was after the mother had taken safety precautions in an endeavour to prevent a recurrence which, I think in the circumstances, were reasonable precautions and their circumvention by R was not as a result of unreasonable behaviour by the mother.
(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
It seemed to me on the evidence that the father demonstrated a slightly more mature manner than did the mother, who became defensive and angry when asked questions about R’s speech problems. It turned out following the Court’s intervention that she had misunderstood the nature of the questions and their meaning but nevertheless the reaction was not necessary and did not indicate a mature approach to the subject. In other respects her evidence was given in a defensive manner and did not replicate the maturity reflected in the father’s evidence.
(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
There is no evidence that the child is an Aboriginal child or a Torres Strait Islander child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As stated above the mother has not undertaken the courses referred to in previous orders and the father has. In this respect the father has demonstrated a greater commitment to fulfilling the responsibilities of parenthood.
The mother has not utilised the communication book or otherwise responded to the father’s attempts to communicate and in that failure does not demonstrate that she is alive to the need for the parents to communicate with each other in order to properly exercise their responsibilities to their child.
The father has been proactive in organising speech therapy and swimming classes for R and the mother has not obeyed the orders in that regard.
The father has undertaken pre-enrolment of R at a central New South Wales School but has, at the same time, made it clear to R that the decision in relation to his schooling is not yet finalised. In this he has taken both a practical step in support of his child but sought to avoid harm to the child by not giving him unrealistic expectations. He is, however, remiss in not consulting the mother in relation to this decision. It is perhaps indicative of the failure in communication of these parents. He has enrolled R in a Jump Start Programme, that being a programme of a preparatory nature for schooling.
It seems the mother made the like effort concerning pre-school programmes. The mother deposes to engaging R in a Jump Start Programme related to the central coast school and demonstrated an understanding of the need to familiarise him with the environment he would be in were he to live with her. The mother gives evidence that she has supported her school age children at school and that evidence is not in issue. She has appropriately involved herself in C’s problematic behaviour and taken steps to support him at school.
The father has been active in assimilating R into the central New South Wales community. He will be attending school there with friends. He would of course be attending in the event that he were in his mother’s care a school where his siblings attend. R has however made friends it seems in central New South Wales within his own cohort.
The father has assisted in the continuation of R’s relationship with his siblings and in particular made arrangements for R to offer gifts and good wishes on the occasion of his sibling’s birthdays. He has made the like arrangements for presents for the mother’s birthday. The father gives evidence of his attempts to maintain those actions, despite difficulty in contact between R and his mother when R is living with him.
The father has seen to R’s medical needs and ensured that he is appropriately vaccinated and has had his eyes tested and his hearing tested prior to him starting school.
The father has maintained continuing contact between R and the members of his extended paternal family, in particular his cousins, those being the children of his sister and his wife’s sister. R also had contact with those aunts. On the evidence, R also enjoys spending time with his step-mother’s parents.
The mother, in relation to her other children, has failed to procure the attendance of her son C at an appointment with a Paediatrician ordered by the Court for C.
The father said of the mother, to the Family Consultant, “I know that she loves her children but I don’t think she knows how to manage them.” The mother it seems has good intentions but her capacity to turn those intentions into action and her commitment to do so is more limited by a margin than that of the father.
The father, on the other hand, seems to be more aware of the child’s needs and more able to commit to action to assist R.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any such violence, although a notice filed by the father drew attention to bruises appearing on R in his mother’s care. The mother’s evidence was that they were the result of an accident. The Court was unable to come to any other conclusion.
(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
There is no such order.
(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
There is no doubt that further litigation in this matter, which has occupied a number of days in different courts since the parties separated, would not be desirable in the interests of R. One can never close the gate but the orders that I propose to make are intended to operate certainly until the completion of R’s primary school education and, if working well, probably beyond.
(m)any other fact or circumstance that the court thinks is relevant
There is no such other fact or circumstance.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. Substantially each parent has taken the opportunities available to care for R and spend time with him; there is no evidence of an absence of financial support for the child. Communication between the parents has not been easy, notwithstanding the initiatives taken by the father.
The Court feels reasonably confident that following this decision and the mother undertaking the prescribed course that there is a possibility of improvement in that regard.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court, unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for his parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
I refer to my earlier findings.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
I refer to my earlier findings.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above. I find that this will serve the child’s best interests at this time.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler

Associate:

Date: 22 January 2010

[2010] FamCA 38

22 January 2010

Key Legal Topics

Areas of Law

Family Law