C and A

[2007] FMCAfam 551

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & A [2007] FMCAfam 551

FAMILY LAW – Equal shared parental responsibility – poor communication – effect upon determination – not living in same locality – non-suitability of proposed self executing orders for share parenting – suggestion of intractable dispute and high conflict – factors to consider in shared parenting – circumstances leading to rebuttal.

Family Law Act 1975 (Cth), ss.60B, 60CC(2), (3), (4), 61DA(1)-(4), 65DAA

Parkinson, Prof. P, 20 Australian Journal of Family Law, “Decision making about the best interests of the child, the impact of the two tiers”
T & N [2001] FMCAfam 222

Applicant: CTC

Respondent: KLA

File number: MLM 8605 of 2001

Judgment of: Coker FM

Hearing dates: 10 & 11 July 2007

Date of last submission: 11 July 2007

Delivered at: Townsville

Delivered on: 11 July 2007

REPRESENTATION

Counsel for the Applicant: Mr Honchin

Solicitors for the Applicant: Tehan George & Co

Counsel for the Respondent: Mrs Pagani

Solicitors for the Respondent: Legal Aid Queensland

ORDERS

1. All previous orders be discharged.

2. The Mother have sole parental responsibility for long term decisions relating to the child, TJC born 21 April 1994, subject to communication and proper consideration of the views of the Father.

3. Notwithstanding the provisions of order 2:

   (a)The mother shall be responsible for the daily care, welfare and development of the child when the child is living with her. 

   (b)The Father shall be responsible for the daily care and welfare of the child when the child is living with or spending time with him.

4. The Mother have sole parental responsibility for the child in relation to the following matters:

   (a)Religious education

   (b)Health decisions.

5. The child spend time with the Father at all reasonable times and, in particular, as follows:

   (i)For the whole of the June/July and September/October Queensland school holiday periods;

   (ii)For the Christmas school holiday period as agreed between the parties in writing and, failing agreement, for four weeks from 20 December in each even numbered year and for three weeks from 30 December in each odd numbered year.

   (iii)The Father provide the Mother with one month’s notice in writing of his intention to spend time with the child and if such notice is not provided then the Mother is free to make other arrangements.

   (iv)In the event that the Father is in T visiting then upon giving the Mother two weeks notice in writing if possible, he shall spend time with the child for the first weekend of his visiting period and for at least alternate weekends thereafter from Friday 5:00pm to Sunday 5:00pm (extended for public holidays).

   (v)By telephone at all reasonable times but in particular Wednesday and Sunday evenings.

   (vi)For the purpose of (a) and (b) above, the child shall travel accompanied by a flight attendant, the Father shall arrange and confirm flight details to the Mother no less than 21 days prior to each period and the Father shall be responsible for the costs of spending time with the child.

   (vii)For the purpose of (a) and (b) above, the Father can nominate to spend time with the child in T by notifying the Mother one month in advance.

6. The child continue to be known by the name of C and that each parent ensure that the child is for all purposes known by the name of TJC.

7. Each party is restrained and an injunction issue restraining each parent from denigrating the other parent in the presence of the child or within the hearing of the child or from allowing the child to remain in the presence of any other person acting in such a way.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

MLM8605 of 2001

CTC

Applicant

And

KLA

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to arrangements sought to be made with regard to the parenting of the child, TJC.  T was born on 21 April 1994 and is therefore 13 years of age, at this time. 

   
   

   I made reference to the fact that the child's surname is C, however, that is one of the many factors that need to be determined, in relation to these proceedings. 

2. The applicant in this matter is the child's father, CTC.  The father's application was filed on 27 October 2005, however, and simply for historical accuracy, it was not the first application that has been made in relation to arrangements with regard to the parenting of this child.  In fact, there have been previous orders made both in 1997 and in 2002. 

3. The father's original application sought orders in relation to the child, as was the terminology at the time of filing, residing with him.  He sought orders with regard to each party having responsibility for day to day decisions concerning the welfare of the child when the child is in their care and sought orders with regard to the mother having, again as the terminology was at the time, contact with the child.

4. He also sought orders in relation to each party keeping the other advised of residential address, telephone contact numbers and notification of any changes and specifically sought an order, with regard to the mother being restrained from changing the child's name from that of TJC.

5. The father amended the application only a matter of a few weeks before hearing.  His Amended Application, filed 26 June 2007, sought orders in relation to equal shared parental responsibility however, one might think that by inference that was contained within the original application of October 2005, but also sought orders with regard to the child living with the father and if the mother and father were not living in the same locality, then, that the mother spend time with the child. 

6. However, he added as an additional consideration, an arrangement proposed in respect of the parties both living in the T district, or, again, one would think by inference, in any place when they were in the same locality.  His proposal then was that there should be shared residence for the child and suggested, that during school terms it should be on a week about basis and during school holiday periods that the child should live with one parent or the other for one half of those holidays, providing of course, therefore, that each parent would have a more extensive period with the child, during the Christmas/New Year school holiday period.

7. The father again, sought continuation of the orders, as sought in the original application, specifically referring to a restraint upon the mother from changing the child's name from that of C.  The terms of the final orders sought in the Amended Application of 26 June 2007 are as follows:

   (1)That the orders made 19 August 2002 at the Federal Magistrates Court at T in suit number ZT2686 of 2002 be discharged.

   (2)That the parties have equal shared parental responsibility for the child.

   (3)If both parties are not residing within the T district:

   (a)The child TJC born 21 April 1994 reside with the applicant father.

   (b)If the child resides with the father the mother spend time with the child as follows:

   (i)Holiday contact for one half of the child's school holiday periods, provided that the mother has leave from her employment during these periods or that the child is otherwise supervised by a person agreed upon by the parties prior to the commencement of the contact period.

   (ii)When the child is in the care of the father, telephone contact on Wednesday and Sunday evenings between 7 to 7.30 pm, the mother to initiate and the father to facilitate such contact.

   (iii)On additional occasions or otherwise by agreement between the parties.

   (c)That when the child is in the care of the mother the father have telephone contact to the child on Wednesday and Sunday evenings between 7 to 7.30 pm, the father to initiate and the mother to facilitate such contact.

   (d)That for the purposes of holiday contact;

   (i)The child is to travel by plane between M and T airports.

   (ii)The mother is to make the necessary flight arrangements to enable the child to travel from M to T and the father is to make the necessary flight arrangements to enable the child to travel from T to M and both parties are to communicate these arrangements to the other party no less than 21 days before the commencement of the holiday period.

   (iii)The mother will fund the costs in transporting the child to and from the T airport and the father will fund the costs involved in transporting the child to and from the M airport.

   (iv)Each party is to bear the costs of the flights to be arranged by them pursuant to sub paragraph 6.2 [sic] above.

   (4)If the parties are both residing within the T district:

   (a)That there be a shared residence arrangement for the child as follows:

   (i)During school terms, the child is to live with each party on a week/week about basis with changeover to occur after school Friday;

   (ii)During school holiday periods the child is to live with each parent for one half of the holiday period, the actual dates to be by agreement but failing agreement the child is to live with the father for the first half of odd numbered years and for the second half of even numbered years.

   (b)Should either parent be unable to care for the child during their period of residence, the other party is to be offered first option to care for the child.

   (5)That each party is to keep the other advised of their residential address and contact telephone numbers and to provide notification of any change in their address or telephone numbers within 48 hours of such changes.

   (6)That the respondent be restrained from changing the child's name from TJC.

   (7)Such other or further Orders as this Court deems appropriate.

8. The respondent to the application is the child's mother, KLA.  Her Response, filed 12 January 2006, seeks generally a continuation of orders, which were made in the Federal Magistrates Court of Australia at T, on 19 August 2002.  She did, however, seek some variation of such orders and in fact, in her Case Outline, the mother's proposals were broken down specifically to what might be the four issues that were sought to be dealt with.

1. They were as follows:

   a)That all school holidays refer specifically to Queensland School Holidays;

   b)The child is able to spend time in T for the Easter School Holidays;

   c)The child has sufficient time at the end of the Christmas School Holidays to rest and prepare for the new school year; and

   d)The father has leave from work during periods that he is to spend with the child and is in substantial attendance during those times.

2. Those four points as set out in the Case Outline did not specifically refer to one other issue, to which I have already referred, that being the name of the child.  In the mother's Response of 12 January 2006, order 2(f) as sought in the Response was in these terms:

   (f) That the mother be permitted to refer to the said child for all purposes as TJA and it is directed to the relevant authority that a new birth certificate be issued for the said child in that name.

3. The orders as sought in the Response of 12 January 2006 are as follows:

   (1)That the Orders sought by the applicant father in his application filed 27 October 2005 be dismissed.

   (2)That the Order of this Honourable Court made in T Registry by consent on 19 August 2002 be varied as follows:

   (a)That Orders number 3.2, 3.3 and 3.7 be discharged;

   (b)That all school holidays referred to in any contact order refer specifically to the Queensland school holidays;

   (c)That the child TJC born 21 April 1994 have contact with the father for the Christmas School holiday period as agreed in writing and in default of agreement for 4 weeks from 20 December in each even year and for 3 weeks from 30 December in each uneven year;

   (d)That the said child's contact with the father always be subject to the father having obtained leave from his employer for the relevant contact period;

   (e)That the father remain in substantial attendance during all contact periods;

   (f)That the mother be permitted to refer to the said child for all purposes as TJA and it is directed to the relevant authority that a new Birth Certificate be issued for the said child in that name;

   (3)Such further or other Orders as to costs or otherwise as this Honourable Court deems appropriate.

4. As I say, this matter is one that has, some lengthy history.  The proceedings, originally before the M Court, have a 2001 reference.  That is not because of the filing of the application in October 2005 but obviously as a result of other proceedings, which were instituted in the M Registry of this Court in 2001.  It may be, that they were in fact, the catalyst for the orders, which were made in 2002.  It is simply unclear on the file, because the orders of 2002 were made in this Registry of this Court.

5. However, there were, as I already have indicated, orders made in 1997.  The parties in fact separated in August 1997 and therefore, next month, will be the tenth anniversary of these proceedings.  It is in some respects tragic that the proceedings have a tenth anniversary when the relationship had nothing like that duration and most tragically of all, the child, the subject of these proceedings, has, for a huge proportion of his 13 years, been the subject of litigation before this Court.  That is not to say, however, that it has been constant litigation.

6. It is clear that orders were made in 1997, and, as best I can assess from the material, there were then four years or so where the situation continued as reasonably as could be expected.  In 2001 there were further proceedings, which led to the variation and the new orders in 2002 and then again, for a period of three or more years, there was a quiet time before further proceedings leading to this final hearing.

7. Unfortunately, whilst there may have been some quiescent periods in the proceedings before the Court, there appears to have been little let up in the difficulties that each parent was experiencing with the other, in relation to the proceedings.  I intend during these reasons to make comments, some favourable and some unfavourable, in relation to both parents.  I noted however, during the hearing, particularly at the conclusion of the mother's evidence, that there were issues in the communication between the mother and the father, which gave rise to concerns.  Neither communicated with each other in, what I would consider in any respects, to be an appropriate manner.

8. Certainly, the criticisms that were made of the mother related, to correspondence in the latter part of the 1990s and early in this Century, being the years 2000 and 2001.  She referred to the husband in a derogatory manner.  It would appear, though it is not specifically clear in the material to me, that she also referred to the husband in a derisive manner in the way he was entered into her mobile telephone.  She says, and I accept, that the communication that was written to the father and the entry in her mobile telephone, were not for the purposes of influencing the child and were not expected to be seen by the child.  One would hope that he has not seen the communications, either by the mother to the father or of course, by the father to the mother.

9. My own experience, and I can only bring that to the Bench, is that the children of this day and age are enormously, technologically savvy.  They understand computers; computer games and it would appear most particularly mobile telephones, far better than any of us.  The mother was naïve and irresponsible to act in the way she did in using apparently a derogatory and swearing term to note any call from the father.  To think that the child, who no doubt is inquisitive, would not have played with the phone or noticed, that a call from his father was on that telephone coming up in a certain way, was as I say, naïve, but it also lacked a certain responsible approach, in relation to parenting.

10. No doubt there are explanations.  The most obvious of those is the degree of frustration that the mother might feel in her dealings with the father, as no doubt the father felt in many of his dealings, with the mother.  The fact is, however, that parents are expected, and we do not have a perfect world, but we hope for one, to act in a responsible, mature and appropriate manner, at all times.  I commented during the hearing that each parent would be subject of some criticisms.  That is the first of a number that will be raised in relation to this matter. 

11. One would hope, that each parent having had perhaps, the opportunity now to turn their minds to the exchanges that have occurred between them over very many years, will realise that the way they have communicated with each other, is at least to some degree, the starting point of so many of the difficulties in relation to this matter, and, more seriously, and more significantly, have been the basis upon which there has been an affect upon this little boy.

12. He has commented to the report writer at length about concerns that he has and feeling that he is between the wishes of both the mother and the father.  That is not uncommon in relation to matrimonial breakdowns and unfortunately the legal practitioners and I are necessarily required to deal with on a daily basis.  But to us, at least, to some extent it is separate and apart from ourselves.  The parents, and most particularly, to T, this is his life that is being affected as a result of the actions of both parents. 

13. One would hope, that if nothing else, these proceedings are a wake up call to both, that for the last 10 years this little boy's life has not been as open and as fresh or as pleasant, as it should have been and could have been.  There is only a small window of opportunity that each parent now has in relation to this child, to ensure that T has a meaningful relationship with both his mother and his father and of course, all other persons significant in his life and that he goes into his young adulthood with a good relationship with each parent.  It would be a tragedy and one that is seen by this Court on a regular basis, for the child to leave his childhood years, and head into young adulthood, with a disrespectful approach in relation to both his parents.

14. I trust that that will not be the case, but I give as best I can a warning for the parents, that it is not something that is uncommon, where children do not like or appreciate what has happened in their lives.  They will make it abundantly clear to each of the parents in different ways, perhaps by a lack of communication, a lack of closeness, or even unfortunately a total breakdown in the relationship.  It would be a tragedy for this child and no doubt a tragedy for each of these parents, if they allowed it to occur and unfortunately, their actions in the last 10 years, in their dealings with each other have been a catalyst for what might be an absolute disaster, in this child's life.

15. There were only three witnesses called in relation to these proceedings.  They were the mother and the father and the report writer, Ms Pat Woodcock.  Ms Woodcock is well known to this Court, having been a psychologist in practice for very many years and, as she indicated in her evidence this morning, she has been a Regulation 8 Approved Report Writer, and has therefore, over a period of some 10 or 11 years or so, prepared in excess of 150 reports.  That is an enormous output of reports by any report writer and her understanding and recognition of the difficulties that occur in relationships and the effects upon children is well known and well recognised, not only by the Court, but of course, by the local practitioners.  It is clear that neither of the legal representatives, appearing as advocates for the parties, raised any question as to the expertise of Ms Woodcock.

1. Ms Woodcock prepared a report which was dated the 19 February 2007.  The report was prepared following a number of interviews, which occurred with the child and the father on the 13 January 2007, and with the child, the mother and with the child's older sibling, J, on the 13 February 2007.  I do not intend to go through the report at length but rather to make certain comments in relation to the report.  The first of those is simply that I was enormously aided by the report.  It highlighted very many of the matters that became abundantly clear during the evidence that was given in relation to this matter.

2. In particular, it became clear that the child was in a very real state of confusion and what is also clear, is that this child is an anxious child attributable, Ms Woodcock says, to the difficulties associated with the relationship between the mother and the father.  That it is having an effect upon him, both in relation to his mental health, she indicating that such early indicators as are shown now, in relation to the child, may, as she puts it, have a negative projectory for his mental health unless these anxiety provoking situation are resolved.

3. She speaks of the child's clear and consistent wish.  It is set out by her in para.65 as follows:

   He doesn't want to upset his father and he does want to remain residing with his mother and seeing his father during school holidays. 

4. However, one must accept that that is as the situation currently exists and the application which was amended by the father now gives rise to the possibility, at least of the father, at some time in the future, residing in the T area and if that was the case, he seeks shared parenting.  The child's wishes as elaborated in para.62 of the report relate perhaps, a little, to that particular aspect of the matter. 

5. When in the care of his father during interview he apparently admitted to Ms Woodcock that he would like to have his parents live together.  He realised, however, that that was not in all likelihood a possibility.  He went on however, and in the report it is commented upon as follows:

   T is torn between his parents.  "I would like one week at each".  "I would like to say to dad that I'd like things to stay how they are but I'm afraid I'll upset him.  I would like to keep things the way they are.  I got heaps of friends here.  I've grown up in T.  I get to spend time with my brothers.  I would feel depressed if I had to be at dad's most of the time".

6. Those snippets of comments made by the child are again, an indication of confusion.  The child clearly, and the evidence points to it, feels torn between his love and attachment to both his parents.  A desire clearly, to have more time with his father and that is perhaps understandable in light of the fact that he is 13 years of age.  If not already pubescent, approaching puberty and, clearly, wanting to have the interaction with a father figure.  He may of course, have a close relationship as is indicated with his older siblings and that is appropriate, but they are not his father.  They are his brothers and sisters and there is a distinction that must be drawn between the two.

7. The mother says, and I accept that with certain limitations, she has been flexible in relation to time spent by the child with his father, but she needs to be aware of the fact that the child will be, no doubt, setting out more definitely to her, what he wants in relation to his relationship, not only with her but also with his father, but also, no doubt, in relation to the opportunity to spend more time with his father.  Just as clearly, on occasions the father will need to be aware of the fact that when the child says he does not wish to spend as long with him or even perhaps on occasion, to not spend time during a holiday period with him, it will not be because of adverse influence by the mother, it will be because this young man is attaining a maturity where he expresses himself, indicates his wishes and has perfectly valid and legitimate reasons for those wishes to be expressed.

8. I was troubled in the reading of the report to note a heading in Ms Woodcock's report of "Concerns".  It is generally not something that is set out in a report, or, if it is, the concerns are more in relation to the flexibility of parents or the capacity to make arrangements work.  In this particular matter it is far more troubling.  Paragraphs 66 to 68 are in these terms:  

   I have some concern in regard to T’s mental health.  His anxiety in regard to his parents is high and the resultant somatic illnesses could be indicators of later mental health issues.  T described his coping strategy as "lying on my bed crying".  John corroborated this "you can't leave him on his
   own - he just folds up".  These are indicators of early depression.

   Ms A should encourage rather than put barriers in the way of the father/son relationship as when she puts up barriers, it injures T as well as Mr C.  T, "mum used to have a rude name for dad, but I made her change it". 

   Mr C should try to see T’s view of the
    situation - that of being pulled between two people he loves dearly - and instead of pressuring T even subtly to make a decision creates anxiety for T.  He is still a child who wants to be taken care of not be pushed into the role of being the protector for an adult.

9. Ms Woodcock commented upon that protective issue at some length in her report and was questioned at some length in relation to it.  She drew assessments in relation to the role being taken by the child and in her experience, and with her expertise, assessed that whether by direct influence of the father, or by osmosis, the child has taken on a role of hoping to provide for protection or, if you like, support for the father.

10. He commented, for example, that if he lived with his father, his father would not have to go to a war zone.  That's one of the matters that will need to be commented upon a little later herein.  But, both the mother and the father need to be aware of the anxiety and the difficulties that are being caused to this child and of the very real risk, as assessed by a competent and experienced expert, that unless there is a change in their ways of dealing with each other and of dealing with the child, this child will be harmed.  Both parents must be aware of that and must do everything that they possibly can to avoid further harm to the child.

11. The conclusions and recommendations are set out in paragraphs 69 through 75 of the report are as follows:

    69. There is a strong and appropriate bond/attachment between T and each of his parents.  Furthermore, T seems to have a strong and positive bond to all of his relatives on both sides of his parentage.

    70. It would be useful for T's self-esteem if he could use the name "C-A" to indicate his symbolic attachment to both of his parents and to both of his extended families.

    71. I was most impressed by JA's respect of the relationship between T and his father.  This could be due to the fact J attempted to have a relationship with his father but it failed.  Surely if 21 year old J can see the value in his brother maintaining a good relationship with Mr C, than [sic] so can Ms A.

    72. Mr C's pursuing of many legal interventions over the years is counter-productive and mediation between Mr C and Ms A seems to have possibilities of being less anxiety provoking for T.  Even though both parties state that they attempt to keep the Court proceedings away from T, T is completely aware of how his parents are fighting about him.

Recommendations

73. I recommend that T remain residing with his mother during the school term and have contact with his father during school holidays.

74. Weekly telephone contact with his father seems important to T and that should remain stable.

75. I recommend that T have regular contact with someone apart from the parents, e.g. the school psychologist or another adult to whom he feels close, in order to verbalise his anxiety so that it does not become a psychosomatic illness or develop into depression.  I recommend that both parents be involved in making sure that T has this opportunity.

1. Most particularly in the recommendations, it is noted that Ms Woodcock suggests that T remain living with his mother and have contact with his father, during the school holidays.  That is, what has occurred and what the mother says should continue.  It is however; contrary to what the father proposes, in relation to either a continued separation in locality between mother and father, in which case he says the child should live with him or, a similar locality in which each parent resides, in which case the father says that there should be a shared parenting arrangement.

2. That was not obvious at the time the report was prepared, however, it was put to Ms Woodcock in cross-examination and she was asked to comment upon that particular arrangement including, whether there might appropriately be, as is now the terminology, equal shared parental responsibility.   She commented in relation to that, that certainly it appears that there continues to be difficulties in the communication between the mother and the father, and if there is no apparent change in those 10 years of difficulties, then it is far more difficult to contemplate equal shared parental responsibility.

3. As she put it, she would think that, as the situation currently exists, if there were equal shared parental responsibility there would be, "always something that could be niggled on or blamed for".  It is unfortunately, I think, an astute observation of the interaction and the relationship between each of these parties.  I was most assisted by the evidence of Ms Woodcock in relation to this matter. 

4. She was asked finally by Counsel for the mother, whether, in her professional opinion, high conflict leads to poor mental health outcomes and whether she had had the opportunity of seeing recent statistical research, prepared by Dr McIntosh.  She indicated that she had seen that statistical data and that she had prepared a similar paper herself, some years ago and that the assessments, in relation to the greater risk of harm of a mental health nature to a child, does rise in situations of high conflict.  It was stressed to me by Counsel for the mother, at least, that this is one of those situations of high conflict and that therefore, the Court must take a protective role in relation to the matter and to the orders that should be made.

5. I turn now, as I must, to the evidence of both the mother and the father.  I will address issues in relation to the mother first, but before turning to each individually, I should make one overriding comment.  That is, that I have absolutely no doubt whatsoever as to this child's attachment and a loving close attachment to both parents but more particularly, at least in so far as this determination is concerned, each parent's absolute love and devotion to the child. 

6. It is clear from what each of them said, and from what has been observed, not only by myself, but of course, also by Ms Woodcock, that both the mother and the father love this child dearly.  The difficulties that arise are not so much as a result of a neglect or a lack of appreciation of a parenting role that they each must take, but the very different approaches and very different views that each of them have in relation to how that might be affected. 

7. As I say, I firstly turn to the mother and to her evidence in relation to this matter.  I was generally impressed by the mother in relation to these proceedings.  I have no doubt that she has gone out of her way in every respect, to provide for the needs of the child and that she has been the primary carer and the person primarily responsible for the supervision, the growth and development of this little boy.  The evidence would appear clearly to be, that in almost all respects, she has done a fine job.

8. It was acknowledged by the father and in submissions by Counsel for the father, that he is a good boy.  He is a happy boy.  He is generally pleasant to deal with though, one's experience with teenagers is that on many occasions, they can be a trial.  However, the benefits of a good upbringing and of the appropriate steps taken by the mother are clear in the product that we are dealing with, this child.  However, there are some criticisms that must be laid at the mother.

9. The father made reference particularly, and it was emphasised in submissions to me to three issues of concern in relation to the mother.  They relate to the name of the child, education arrangements in relation to the child and the effect on the child of the poor communication between the mother and the father, at least in this instance, it being attributable, the father says, to poor communication and a lack of flexibility by the mother.  I will address each of those issues individually. 

10. The first in relation to education, is a matter of concern.  The mother accepted when it was put to her in a point-by-point basis, that the child has had significant periods of absence from school.  From year 1 through to year 8, there have been occasions where the child has had inordinately long periods of time, absent from school, particularly in 2003, 2004 and 2005. 

11. In 2003 in the second semester, which is, approximately 20 weeks in length, the child was absent from school for 21 and a half days.  More than 20 per cent of the time that he could and should have been at school, he was absent.  In 2004, he was absent in total 57 days in the year; 29 days in the first semester, 28 days in the second semester.  Again, nearly 30 per cent of the time he should have been at school, he was not in attendance.  In the first semester of 2005, he missed 26 days.  The mother apparently tries to explain the difficulties in relation to the child's attendance at school by saying that the child was disturbed by the father's suggestion that the child live with him.  However, the application was filed in October 2005. 

12. All of the semesters that have been referred to by me, therefore, to date, occurred before the bringing of the application or even, it would appear, before any discussion that the child might have had with the father from which the father inferred that the child wished to live with him.

13. Ms Woodcock talked about the mother trying to be sensitive to the child's needs.  I accept that, but I am also mindful of the fact that children can be the most manipulative creatures on the planet.  Parents parent, and children are able to expect that their parents will do so and they should not be able to get away with what is not justifiable.  The mother did not indicate at all that there were health issues in relation to the child.  If the child did not want to go to school, then there needed to be consequences of that. 

14. She talked about him, for example, not being able to go on sleepovers if he had taken a day when he did not go to school.  But the more important consideration here is that the mother, who was the primary carer, had to deal with that issue.  She failed to do so from about the second part of 2003 onwards and unfortunately, that has continued.  The child's absence for 38 days in semester 2 of 2006, the final year of primary school is nigh on 40 per cent of the time, that that child was expected to be at school.  The father had a justifiable and proper concern in relation to the education of the child.

15. The mother must recognise, that if she continues, as she suggests she should, as the primary carer for this child, then the nonsense with regard to attendance at school stops.  Failure to do so is exactly as submitted by Counsel for the father, an abrogation of the responsibilities of parenthood but more particularly, a failure to provide for the absolute needs of the child.  Education missed in those early formative years, and certainly, in the early years of secondary school, are going to have a snowballing effect into the later years of high school and of course, into the child's young adulthood.  Without the basics being established this child cannot expect to achieve all that he might be able to achieve. 

16. The mother must recognise, that sometimes being a parent is tough and sometimes being a parent, requires you to be tough.  This child’s situation cannot continue in this respect and I would put on record here, that if such issues continue, I would not expect that the father would be unjustified in making a further application in relation to this child.  Certainly, if the child is ill, there must be a proper appreciation of that, but the mother has to make the adult decisions and the parenting decisions in relation to the matter and if that means that she has to appear mean or difficult with the child, so be it. 

17. Children will appreciate in later years the decisions made by their parents in their young life, even if at that time it is not necessarily appreciated.  The considerations of the father and the concerns expressed by him are justified and the mother has in my view, fallen short of the expectations upon her, in relation to the education of the child.  

18. Additionally there is a concern in relation to the name of the child.  I must say, that I was troubled by this particular aspect of the matter.  I note that the mother says that she did not seek specifically or directly to influence the child in relation to the name A, rather than the name, C.  However, it is clear from the information and the evidence before the Court, that until three years of age, this child was known as C.  The parents were together.  The child was baptised as C. 

19. There is clear evidence that in fact, the child's registration at birth did not occur until a time just prior to separation in August 1997.  T was three years and four months of age at that time, when the registration was done in the name of C.  I am simply unable to expect or to accept, that for a period of in excess of three years, there was never an issue raised in relation to the name of the child.  If it were to have been the case, it must have been discussed and I do not accept that it was discussed.

20. I am far more inclined to the view, that following separation, the degree of hurt and animosity as between the mother and father has lead to actions by the mother, just as much as actions by the father, designed to hurt the other party and one of those actions was to inculcate into this child, an expectation that his name was A.  It has lead to confusion in the child's life.  As is clear from the evidence that is given, the reports that have issued in relation to the name of this child show that in pre-school and then in years 2 and 3, he was known as A.  In year 1 however, the reports issued in the name of C.  It is noteworthy, that that is well before any threatened proceedings or actions by the father, which are referred to in much later communications by the father in 2003, 2004 and 2005.

21. Significantly, the child was known in year 4, I think, as C-A, then in year 5 again, as A and then in later years, semester 2, 2005, semester 1, 2006 and semester 2, 2006 as C and the only report available in relation to the first year of high school, grade 8, 2007, is in the name of C.  No wonder this poor child is confused.  If even the name that the child is to be known by is an issue between the parents then the child has a very difficult road ahead, as is obvious from the effects that are already evident in him.

22. There is some legitimacy in what the father says in relation to this child and his name.  The mother certainly indicates that she wished the child to have the same name as her and, the same name as the two siblings closest in age to T.  However, those siblings are, four and seven years older than T.  They know who they are, they know their sibling relationships, just as T knows his relationships, not only with those two siblings but the two older siblings, yet who are known by a different surname.

23. The relationship between them will, no doubt, be unaffected by what names they might have and in any event, upon attaining 18 years of age, they can use any name they choose or, the oldest sibling, a daughter, could change her name by marriage, if she chose to do so.  It is, in my view, somewhat nonsensical to suggest that, with the siblings so significantly apart chronologically, that there is some need for there to be a continuation of the name.  I accept that the mother would wish, being the primary carer, to avoid perhaps the embarrassment or the inconvenience of having the child known by a name other than that which is used by her, but, in my view, it is a situation that must be ceased.

1. I commented during addresses, that one of the difficulties is one that will come up in the not too distant future for the child, which will relate to issues in respect of obtaining a passport or obtaining a driver's licence.  I have seen on many occasions in this Court, issues of concern which arise in relation to 16 or 17 year old children who are known by one name but in fact whose birth certificate is in another.  It is one of the many examples of difficulties that can arise in relation to the future arrangements, in respect of the child.

2. I am mindful of the fact, that this child has attended the same school from pre-school and no doubt will continue right through, one would hope, until year 12.  What I note particularly, however, is that for the last two years, at least, since semester 2, 2005 until semester 1, 2007 the child's academic records are in the name of C.  There are no magic bullets in relation to this matter, but in my view, there needs to be certainty and there is no reason why, particularly, when the mother's proposal is that the child should remain in her care, that there should be a reduction in the child's knowledge or affinity, with his father. 

3. His father is C, the child was born C, the child was christened C and academic records, at least in recent times but also as I noted in 2000, had the child known as C.  I am not satisfied that there is any basis upon which there could be a reason for change and I intend to make appropriate orders in relation to the child being known by the name of C and continuing to be only known by that name.  It will be, again, in my assessment, damaging to this child for this nonsense to continue.  The child has a name.  It's not the same as the mother's, but no one could possibly expect that it would give rise to any confusion or difficulty for the child and, in our society today, one would think that perhaps half of children in the country are known by names, different to one parent or the other. 

4. It is a fact of life.  It is an unfortunate consequence of the breakdown in relationships and it needs to be dealt with by this child and these parents, just as it is dealt with by every other family in the country.  I am not satisfied that it is an issue of confusion but I am concerned, that if there were a change, it would be, perhaps only a small, but relevant stepping stone in relation to an affect upon the relationship with the father.  The child should and will be known by the name of C.

5. The third issue of concern that I wished to raise in relation to the mother, related to the exchange of correspondence between the parties.  I commented upon that a little earlier.  The mother's correspondence with the father and the inclusion of a derogatory name in her mobile telephone, was not the most responsible or appropriate step that could be taken.  I accept that it is difficult to turn the other cheek and in a perfect world one would expect there would be no need to turn the other cheek because there would not be situations of frustration, harassment or intimidation, as the mother not doubt felt in the correspondence, that she received from the father.

6. However, notwithstanding that degree of frustration, adults are expected to be adult and they are expected to act in a manner, which could not, even in the remotest way, lead to harm to the child.  The fact is that the mother's notation, particularly of the denigrating name in the telephone, was seen by the child and he was influenced enough by it to comment upon it to Ms Woodcock.  That is an indicator that the mother could have, and should have acted more appropriately.  The mother could have been a better parent, as could every other parent in the world.  We all can only do the best we can, with the cards that are dealt to us. 

7. The mother has fallen short of what in a perfect world might be expected but, I do wish to emphasise here that, in my view, she has experienced a significant degree of frustration, intimidation and harassment and she has done the very best that could be expected of her.  Whilst there are some criticisms, as I said at the commencement of these reasons, overall I was impressed by the mother and the job that she has done in the rearing of this little boy.

8. I turn now to the father.  I do so with some difficulty.  I was not impressed by the father in relation to this matter.  Whilst there was some criticisms made, legitimately, in relation to the mother, they pale into insignificance when one turns to the evidence of the father and of the attitude that he has shown in the last 10 years since separation, and in fact, on the day of separation.  The father's behaviours have been inappropriate in the extreme.  I could not use more critical terms, than arrogant, overbearing and dictatorial.  The father was, in my assessment, the epitome of a difficult man to deal with and a person who made the role of parenting for the mother, almost impossible.

9. If one starts with some of the concerns in relation to the matter, the best starting point would, in my view, be the day of separation.  The father was calculating and cold in what occurred on the day of separation. 

   
   

   I should note, that I am not satisfied that he had not planned the separation from the mother for some months, because of the very clear indications in the application that was put in of a preference, with regard to a different posting.  It was to remove himself from T.  He was asked by me, whether he communicated that to the mother and he said that he did.  The mother's evidence was that it came out of the blue and was unknown to her.  I am far more inclined to that being the correct position in relation to the matter, as my assessment of the father, as I have indicated, is that he is calculating and manipulative.

10. On the day that he and the mother separated, or rather that he left the matrimonial home, his actions in the departure were incredible.  He had in his care, the mother's two children of a prior relationship.  At that time, they were aged 6 and 8 years.  They were taken to the movies and left by the father, whilst he and his father then set about collecting certain items from the home.  They were collected from the movies and then taken to a park, not very far distant from where the home might have been, but they were left there unsupervised in a situation which of course, is of concern in the present day and age and no doubt, would have been just as of concern, 10 years ago.

11. He left them in a situation, however, where, when they returned to their home, they found their father, or at least their stepfather, who had been in a significant role in their lives for a significant time, gone.  They found their younger brother gone and they found a good proportion of the contents of the home, gone.  The father saw nothing wrong in any of his actions.  He saw it as his right.  He saw it as something that could be done by him as and how he saw fit, and yet, one week later, he had the audacity to criticise the mother, for what he said, was the abduction of the child.

12. He was asked by Counsel for the mother, how his taking of the child from the house in the deceitful way that he did, was different to what she did, when seeing the child on the verandah of his residence and taking him back.  His only explanation was that she took the child from private property and he took the child from a house at which he had the right to be present.  It was bastardry in the extreme.  It was callous and it failed in any way whatsoever, to recognise or to realise the effect upon a 3 year old child, of being removed from the parent with whom he had spent the predominant time and by whom, the father acknowledged, the child had primarily been cared for.

13. It was clearly an act of a person who put his own wants and needs ahead of, not only of course, the wants or needs of the mother, but most significantly, the best interests and welfare of the child.  It has continued constantly since that time.  The correspondence that the father has written was described by his Counsel, understandably, as brusque.  It also, in my view, could be described as threatening, intimidating and demeaning.  The father, for nearly 10 years, has started each of the letters, at least as best as I can assess, with a direction that the mother provide the child with sufficient clothing and to act in an appropriate manner.

14. He says that this arose from the fact that in 1998, he was asked by the mother to sign certain documents or he would not be given the child's suitcase and she failed to do so.  He bears a grudge.  There is no doubt, that for the next nine years or thereabouts, he has continued to berate the mother over that incident.  He has continued in the correspondence that he has forwarded to be demeaning.  He has referred to the mother in inappropriate and unpleasant ways.  He has spoken to her about being neglectful of the child.  He has spoken about the mother being mean-spirited and failing to meet the needs of the child. 

15. He spoke at length and repeatedly in correspondence but also in evidence here, of the mother being inflexible and changing arrangements in relation to the child without consideration of the child's best interests, and yet, on a considerable number of occasions the father, on the shortest of notice, has changed arrangements in relation to the time to be spent by him with the child, including both the duration of such periods that he was to spend with child, as well as both times and places of collection and return.  His explanation in relation to that, was simply to say that it was work related and that it reflected requirements that were placed upon him.

16. He said that any changes that the mother might have wanted, and in particular, referred to an instance where the mother would be in Victoria and wished to collect in Victoria, was able to be distinguished, because her request was leisure related and his requests had been work related.  He of course, failed to appreciate at all that it would mean that on that particular occasion, the child would be able to be accompanied by the mother on a return from a period of time spent with him, rather than accompanied by the father as it appeared to have been necessary at that time, or, simply more convenient for all.  The father gave me the distinct impression that he was entirely self-centred and directed only to what he wished to occur and to happen, in relation to proceedings.

17. The father, in my view, minimised any areas or issues that might in any way be seen to have been critical of him and yet, sought to emphasise and criticise what he said were failings on the part of the mother, be they in relation to flexibility, co-operation or signing or orders or other documentation that might have been prepared by him.  The father gave me the distinct impression, that if there was anyone inflexible in relation to these arrangements over the last 10 years, it was him.  I fail to be able to recall in any other trial, a more rigid or inflexible personality, than that of the father.

18. I have commented upon his correspondence.  It was demanding and instructive in every respect.  There was no flexibility; there was only control and demand put on the part of the father.  His actions over and over again, over the last 10 years could only be the subject of criticism.  He heard what he wanted to hear from this little boy, when the child asked him what school he might attend, if he went to school in Victoria.  However, he fails to hear what the child is saying in relation to his wishes, as communicated to the family report writer.

19. I gained the distinct impression, that in this father's particular determination of proceedings and how things should be done, there is only one voice that should be heard and that is not even the voice of the child, it is the father's voice and that father's wishes.  I have not found myself in a situation before, where I thought the actions of a parent, were virtually, from the date of separation right up to the date of hearing, and that in this instance is 10 years, has been an instance of complete and continuing bullying and manipulation of the other parent.  I was troubled in the extreme by the way the father communicated with the mother; the way the mother was approached by the father and the way the mother was demeaned by the father, both in their interaction with each other and in the communication. 

20. The father's arrogance was emphasised perhaps most obviously, in the situation to which I have already referred, which related to the mother’s request that she collect the child in Victoria, rather than a return of the child to T.  The father said that he was unable to change bookings and in any event she was required to collect the child in T.  Of course, when one looked more closely at the orders and the father was taken to this particular aspect of the matter, he noted and accepted that there were no orders that actually required that, though there may have been some airline requirements.  However, no doubt, it could and should have been more appropriately dealt with, perhaps with the mother giving notification of some other person collecting the child, or even perhaps, a little flexibility shown on the part of the father so that the child could be collected, as was subsequently arranged in Victoria and travel with the mother.

21. The inflexibility and the arrogance of the attitude, shown by the father, is evidenced by the fact, that the father's own correspondence and in some instances, on a number of occasions, before one particular period that he was to spend with the child, included numerous changes of both the duration of the period to be spent with the child and, the point of collection and point of return.  The father was demanding in his dealings with the mother.  He was overbearing.  He was intimidating and he was harassing.

22. Unfortunately I do not believe that there can be any change in those dealings and I am comforted in that finding, by the fact that the father himself, acknowledged early in cross-examination, that there would be continuing difficulties.  There was an exchange between he and Counsel for the mother, in relation to the application, as it was amended, for equal shared parental responsibility. 

23. He was asked how he thought equal shared parental responsibility could occur, when there was no communication.  He properly answered, that it had to occur for the sake of their son.  He was then asked how that would benefit the child and he indicated that T was entitled to the love and support of both parents.  He was asked whether that could be done without equal shared responsibility and he said, that he did not believe that the child could have the love and support that he was entitled to, unless there was equal shared parental responsibility.

24. Counsel for the mother then asked the father whether he thought it was a fair call that it would not occur if the parties had not been able to get on in the last 10 years.  His response was that that was a fair call.  The father, in perhaps one period when he actually recognised the difficulties associated with the relationship between he and the mother, acknowledged that, whilst the child might quite properly be entitled to a relationship with both parents fostered by equal shared parental responsibility, there was little likelihood that it could occur.  I agree that that is the case, in relation to this matter.

25. I have been highly critical of the father in relation to this matter.  It is important, however, as I indicated at the commencement in relation to the parents, that I recognise that there are positives.  The father has been a positive role model in relation to this child.  He has, during the whole of the child's life, continued, as best he could, to maintain a relationship with him.

26. He has spent considerable amounts of money continuing the relationship with T, though there was some degree of criticism directed to him by counsel for the mother, to the effect that that had only occurred on the occasions of holidays and had not been extra periods when the father might have had the opportunity to spend time with the child.  When he lives in Victoria and the mother lives with the child in Far North Queensland it would be an inordinately difficult experience for the father to travel for the purposes of, for example, just weekend time to be spent with the child.

27. The father has done what he can, in relation to fostering his relationship with the child and he has done well in that regard.  Ms Woodcock commented upon the child's close relationship with both parents and, of course, particularly in this instance, with the father with whom he only has limited opportunities to spend time.  The father has been able to foster that relationship.  To some extent it reflects well, however, upon the mother too, because if, as is suggested by the father, she had been as manipulative and as controlling as he would suggest, then if she was as good at the control as the father would suggest, the child would not have the close relationship that now exists.

28. As is obvious from the comments that I have made, I was, however, enormously troubled by the evidence that was given by the father and, particularly, of the lack of communication between he and the mother.  I should also touch upon some criticism that arose in relation to correspondence that was forwarded by the father to the child whilst he was in Iraq or Kuwait, in or about 2003.  He spoke in those letters of the difficult conditions over there, the trying circumstances, the risk that arises and spoke, at one stage, about a flesh-eating spider.

29. The report writer, perhaps understandably, made some criticisms of that in that, it failed to appreciate that, whilst the child might be interested in such issues, including the circumstances as they existed in the Middle East, and the fascinating elements of a flesh-eating spider, it might be also rather terrifying for the child.  That might be the case, but one can only draw on their own experience with children and, as best I can assess, 9-year-old children would be absolutely fascinated with some of the information, that the father provided. 

30. Some of it, however, was entirely inappropriate and simply related to adult and world affairs, far beyond the scope of what this child could be expected to know.  I do not necessarily make any criticism of the father, however, in relation to those items of correspondence.  At least he continued to try and maintain his relationship with the child.  He may not be the most sensitive or insightful of men, but there must be credit given where credit is due and he could easily have said, it was too difficult to communicate and failed to do so.  He did communicate with the child.  Again, perhaps not as one would have hoped in a perfect world, but then he did the best that he could.  The credit should be recognised in relation to that and the father should be complimented for the continued communication with the child.

31. I turn now to the various matters that must be considered in relation to this particular matter. I was referred by counsel for the mother to a recent paper by Professor Patrick Parkinson in 20 Australian Journal of Family Law under the heading "Decision-making about the best interests of the child, the impact of the two tiers". The two tiers that are referred to are those which are set out in s.60CC (2) and (3) being the primary and additional considerations in relation to any determination.

32. Professor Parkinson, who is well known and well regarded, not only within Australia but internationally in respect of research into parenting and arrangements with regard to parenting, speaks of the benefit of a meaningful relationship between a child and parents to the child.  He says, on page 4 of the paper referred to by counsel for the mother, the following:

    Section 60CC clearly indicates that the Court should so exercise its discretion in relation to post separation parenting arrangements that meaningful relationships between parents and children are maintained in the absence of violence or abuse.  A child will almost always benefit from a meaningful relationship with both parents in the absence of violence, abuse or very high conflict.  Where there is ongoing violence or intractable conflict the interests of the child may best be served by restricting the contact with the non-resident parent or preventing it entirely.  As a general rule then the primary considerations reflect the findings of a very large body of social science research on parenting after separation.

1. Counsel for the mother suggested that this is a situation of high conflict.  Counsel for the father says that it falls way short of high conflict and that it is simply a situation of poor communication.  I am inclined to think that it is probably somewhere between the two.  I feel I may be trying to straddle two fences in relation to this particular matter, but I do not see it as a situation of high conflict because, whilst there are difficulties and they are apparent in the interchange and exchange between the mother and the father, there are some degrees of workability. 

2. Counsel for the father, quite properly, set out that arrangements had been in place for years, in respect of the child's education, whereby the father has the responsibility for the payment of school fees.  That obviously had to be worked out.  No doubt it was difficult and took some time but it was able to be resolved.  Intractable conflict leads to no resolution whatsoever.  Just as clearly, there have been changes in arrangements with regard to the time that the child spends with the father.  Intractable disputes are unable to be resolved.  There is either absolute reliance upon the exact word of the orders or no time spent at all.  In this instance, there was some flexibility, more often than not, shown by the mother but it occurred.  That again is not intractable dispute.

3. The other extreme to which I was referred, was not that it was high conflict, but rather that there were just difficulties in communication.  My assessment, as I have already indicated, would go further then simply difficulties in communication.  Communication gives rise to a recognition of the relevance and importance of the other parent in the decision making process.  I gain the distinct impression, in this case, that there is little recognition on the part of the father, of the mother's views or wishes in relation to this child. 

4. It is a difficult consideration, because of course, the starting point following of course, consideration of the best interests of the child being the paramount consideration, is in relation to proceedings for parenting, the provisions of s.61DA of the Family Law Act.

   Sub-section (1) of section 61DA says the following:

   (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.

5. Sub-sections (2)-(4) of s.61DA then provides as follows:

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of a child) has engaged in

   a)abuse of the child or another child who at the time was a member of the parent’s family (or that other person’s family) or

   b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)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.

1. In a nutshell however, it provides that the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, which can be rebutted, if there is abuse or violence, or evidence otherwise which satisfies the court that it is not in the best interests of the child.  There is no suggestion of violence in this matter.  There are certainly suggestions of abuse, not necessarily directed toward the child, but observed by the child because he is being affected by the interaction between the mother and the father. 

2. There are certainly harsh words exchanged between the mother and the father, and whether the child has directly heard those exchanges or has simply seen the affect, a disturbed and distressed mother, or an angry and frustrated father, the fact is, that he is no doubt intelligent enough to know that the exchanges between his parents are not pleasant, and, that they have an effect upon his parents, and extrapolating that effect upon him.  More particularly, however, the Court has to wonder whether there are other factors that give rise to a consideration which rebuts the presumption of equal shared parental responsibility. 

3. I was referred by Counsel for the mother to the decision of Ryan FM, (as she then was), in T & N [2001] FMCAfam 222, wherein, Ryan FM gave consideration to the various matters that must be looked at, in relation to not only equal shared parental responsibility, but equal time. At para.93 of her reasons, Ryan FM set out a number of dot points in relation to the considerations that need to be looked at. They are in fact very telling in relation to this matter.

4. They are as follows:

   93. The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:

   ·    The parties' capacity to communicate on matters relevant to the child's welfare.

   ·    The physical proximity of the two households.

   ·    Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   ·    The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment?

   ·    Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.

   ·    Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.

   ·    Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.

   ·    Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   ·    Whether or not the parties respect the other party as a parent.

   ·    The child's wishes and the factors that influence those wishes.

   ·    Where siblings live.

5. The first of these dot points is the capacity to communicate.  In this situation it does not occur.  Communication is simply an exchange of words here.  There is no exchange of feeling.  There is no exchange on the basis of consideration by one parent of the wants, needs or aspirations of the other parent, and a legitimate and real consideration of whether that might be appropriate for the child.  There are difficulties the mother has experienced in her communication and criticisms that can be made.  Whether they still continue I am not sure.  It may be that she is simply at the end of her tether, and tries not to communicate to any great extent at all, with the father. 

6. The father however, continues with very poor communication, and as was set out in the material, even with these proceedings approaching, the father in his last communication with the mother, which was an email, was unable to control a degree of vindictiveness and spitefulness in his communications.  He says as follows, and this is an email of 13 June 2007:

   Dear K.L. A

   Your notification for T’s holiday time in Victoria.  His flight details are Friday 22 June at 18:40 on Jetstar flight JQ919.  Ensure that he is at the airport at least one hour prior to his departure and that he has adequate winter gear for his time away.  He will be returning on Sunday 8 July at 19:10 by Jetstar flight JQ918.  Also ensure that T comes down free of head-lice and nits.  It is bad enough when it only happens once, and I can move on from that.  But four times causing friends, cousins, and other family to have to go through the inconvenient, embuggerance of delousing, because of an apparent failed hygiene regime in the T household (if there is one!).  It used to make me feel bad until I was assured by the above mentioned people, the responsibility and vigilance begins and ends with the resident parent.  T too, gets extremely embarrassed for the trouble it causes.  I do not except your last explanation following my call to you last holiday period that he wasn't treated properly because it would have meant him missing the school camp, and when he returned he didn't want treatment because he had friends staying over, and it would have been an embarrassment for him.  No doubt, your dismissive attitude in these circumstances left other children in the camp infected.  Possibly teachers as well not to mention the unsuspecting friends who stayed over that night.  You are literally saying to me you run a disciplined, redundant household, where a do-as-you-please commune type attitude prevails, and to hell with the consequences to others.  It is painfully obvious that the tail wags the dog in the A household. 

   I think I know the real reason behind your lack of parental guidance, leadership and good example, but that will come out soon enough.  Please use a bit of proper parental vigilance and care this time.  You are supposed to be T's mother, not his commune comrade. 

   Until Court Time.

   C.

7. One would have expected the father to be on his best behaviour.  He would not have sought to demean, criticise, harass or harangue the mother.  The communication forwarded by him is exactly that.  There is, in my assessment, absolutely no capacity to communicate in a civil or appropriate manner in relation to this household, primarily as a result of the attitude of belligerence of the father. 

8. There are a number of other issues that are set out in T & N (supra), which require consideration.  They relate to the proximity of the two households.  These two households at this time are not close, but the father says that if, at some stage in the future, he should be in close proximity, there should be shared parenting and that that should be facilitated by a week about arrangement.  I am not necessarily satisfied that that could properly work, and in any event, it would seem to me, that it is inappropriate for a Court to try and rule at this time as to what might, at some hypothetical time in the future, be appropriate for the child. 

9. T is thirteen years of age.  As I understand the father's evidence there is little likelihood that he would be able, even if he were to seek it, to be living in T until the latter part of 2008, or early 2009.  T would then be nearly 15 years of age.  Very different considerations might arise and a far more vocal and forceful opinion might be given from the child as to his wishes, in relation to the matter.  There is no proximity at this time, and there is no proper basis upon which the Court could consider arrangements with regard to the child if the parties were living in close proximity. 

10. The request was made by Counsel for the father, that there be some consideration of what happens in relation to other arrangements with regard to the parenting of a child, for example if parties live a considerable distance apart and then live close together.  That however, in my assessment, relates to the arrangements that should be put in place with regard to a child spending time with a parent, not to a radical change, which would be the change in the household.  That, in my view could, and properly only should be assessed, when the situation exists and full particulars and information are available. 

11. For example, in this matter there is no evidence whatsoever, nor could there properly be, of where the father might be living, how communication could be had, what arrangements could be put in place, whether there is a capacity to have the child easily moved between the two households, and between each household and the school.  It is impossible to make an assessment until the fact situation fits the needs of the child.  Similarly, consideration needs to be given to whether the child can maintain friendships, associated with living in both homes, and of course similar consideration to those which I have referred, arise. 

12. A significant consideration is the prior history for the caring of the child, and whether the parties have demonstrated that they can implement an equal shared living arrangement without undermining the child's adjustment.  Quite clearly, there is no prior history that shows an equal arrangement, or even significant and substantial time arrangement, and I would not think that, that could occur until there were real indicators of where the father might be, and how that might work. 

13. Significantly, the factors that also need to be considered are whether the parties agree or disagree on matters relevant to the child's day-to-day life, and, where they disagree, the likelihood that they would be able to reach a reasonable compromise.  From the comments that I have already made in relation to both parties, I would think that there is little likelihood that there would be much agreement in relation to matters relevant to the child's life, the mother commenting that she does not like the father's personality, and that might, or might not be, an appropriate stance for her to take.  But, more particularly, whether they would be able to reach a compromise.  I have little comfort or assurance that they would be able to reach any compromise. 

14. Whether they share similar ambitions for the child is not exactly clear.  But I accept that they both have aspirations, which are for the child to be able to achieve all that might be able to be reached by him. 

15. Another factor, which would be significant if the father were in the same locality, would be if they can address on a continuing basis, the practical considerations that arise when a child lives in two homes.  If one looks at the father's communication over the last ten years since separation, there is no confidence that could be held whatsoever, as to the parties being able to work with each other, in relation to the child living in two homes.  It means that when he leaves a school book behind, running gear, football boots, or whatever, there can be an easy exchange between the two parents, that ensures that the child is able to have those items brought to him, no matter from which house they might be in. 

16. The fact is here, that the father has no confidence that the mother will even provide warm clothes for the child when travelling to Victoria in winter.  The practical considerations of the two households, and how that might work, seems therefore, to be an even more difficult consideration than those matters in relation to the exercise of time spent by the father with the child. 

17. The last three factors are significant.  One, which troubles me enormously, is whether or not the parties respect the other party, as a parent.  On the face of it there is some degree of respect as a parent, the father acknowledging quite properly that whilst he has some criticisms of the mother, the child has grown and developed into a good and happy young teenager.  However, there is no real respect as between the parties. 

18. The mother does not like the father very much.  Whether that is justified or not is not a finding that I need make.  I have no doubt that there was a significant degree of frustration and that it continues in the dealings between them.  But what flows from the fact that I would assess that she does not like the father very much, is the fact that she does not respect the father very much. 

19. Just as clearly, I would find that the father whilst perhaps, talking the talk, does not walk the walk, when it comes to respecting the mother, and her role as a parent.  He is dictatorial in his dealings with her and in his communications with her.  I have absolutely no confidence that there would, or could be, any change in that regard. 

20. The last two factors are the child's wishes and where siblings live.  The child has expressed wishes in this matter.  He wants, if possible, to see his parents back together, but realises that cannot occur.  He also wants, if possible to spend more time with his father, and perhaps that would be able to be achieved if the father was living in the same locality or even in closer proximity than Victoria to Far North Queensland.  But the child's wish also is that he remain in T, that he remain with the same interaction of peer group, and that he remain living in the mother's house.  That could not be clearer, and whilst he might appreciate the opportunity for more time, to be spent with the father, it is an extremely long bow to suggest that, that should therefore automatically, and in a self-executing manner, lead to a shared care arrangement.  The wishes of the child are clear, they are just not being heard by the father, particularly in relation to this matter. 

21. Where the siblings live is also a factor.  Whilst, there are no full siblings, I despise the term half-sibling.  To T, his four older brothers and sisters are just that, they are his brothers and sisters.  Two of those brothers continue to live in the same household as him, and one lives in the same town.  He has close attachments with them.  If nothing else, that is evidenced by the fact that J attended at the interview, and spoke of his keen appreciation of the effect that this family's dynamics are having upon the child.  It was horrifying to note, that in fact, there is a comment by J to Ms Woodcock to the effect,

    "that you cannot leave him on his own - he just folds up". 

22. For a 16 or 17 year old boy to note that about his 12 or 13 year old brother, it must be abundantly evident, because as we all know, children are more often than not, immediately, and immensely

    
    

    self-centred, and they do not really appreciate what others are doing in their lives.  For J to have noted that about his younger brother, shows a close attachment between them, and a real appreciation by J of his brother's needs, and quite clearly by inference, a close relationship between the two. 

23. When one looks at all of those factors, as set out in T & N (supra), one cannot otherwise assess that there is, no basis whatsoever, upon which there could be equal shared parental responsibility, or flowing from that, shared or equal time or even significant and substantial time.  There may, if the father were in the same locality, be a need to reconsider this matter and to look at more significant and substantial time.  It may be that if that occurs, at some time in the future, T’s feet will decide what he does, and both parents had better watch out.  He will make some decisions in relation to himself, and they had better fall into line or they are going to lose the very precious relationship that they have with that child. 

24. I commented at the beginning that each parent needs to be mindful of how their actions have affected the child.  Even more so now.  They will need to be mindful of the fact that he is a maturing young man.  He is aware of what is going on.  He is no doubt aware of these proceedings and of the effect, or possible effect upon him.  To fail to recognise those factors and to take them into consideration can only lead to difficulties for the child, and in the end, difficulties for the parties.

25. I am satisfied beyond any shadow of a doubt, that it is not in the best interests of this child that there should be equal shared parental responsibility.  It cannot work.  There is a lack of respect, as well as communication, or appreciation on the part of either of the parents of the validity and the legitimacy of the other parent's role, in relation to decision-making.  What that leads me to of course is to the only possible finding, which is to the effect that the mother should be the person who has the sole parental responsibility in relation to the decisions, subject of course, to the obvious parental obligation of communication of such matters, and discussion with the father. 

1. It may not mean that she has to follow what he wants, but it would be an abrogation of the responsibilities of parenting to not make the father aware and to hear what his views might be.  Perhaps if there was some proper degree of communication between the parents, these proceedings may not be on foot, and this child may not be as troubled a little boy, as is obvious from the evidence that is before the Court. 

2. In light of that finding, I turn then as I must to the various factors that need to be looked at in relation to determining the parenting arrangements for the child.  Section 65DAA, is not relevant here because, I have already found that the presumption of equal shared parental responsibility is rebutted.  However, it would not be workable even if such an arrangement were able to be affected because of equal shared parental responsibility, because it requires consideration of, equal time, if that is reasonably practicable, or, if equal time is not appropriate, then substantial and significant time, if that is reasonably practicable. 

3. At the present time, it is impossible.  The father lives in Victoria, the mother and the child live in Far North Queensland.  If circumstances change, as the father at least suggests might be the case at some time in the future, then unfortunately the matter may have to be reviewed.  One would hope that any further consideration would not necessarily arise directly as a result of the institution of proceedings, and of course, the more recent amendments to the Act, require that there be steps taken in relation to family counselling, before the institution of fresh proceedings.  But in this particular matter, it would be appropriate in the extreme, that there be the utilisation of the Family Relationship Centres, the Court counselling services, or other facilities which might allow the parents to be heard, and the child to be heard in relation to his wishes.  

4. As that is not feasible, however, the factors that must be looked at are the objects of the Act, as set out in section 60B, and as are dealt with as considerations in s.60CC of the Family Law Act. Sub-ss.(2), (3) & (4) are relevant here. Sub-ss.(2) and (3) are the two tiers that were referred to in the paper by Professor Parkinson. Subsection (2) is headed, Primary Considerations, and is in these terms:

   (2)The primary considerations are:

   (a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Sub-section (3) is headed, Additional Considerations:

   (3)Additional considerations are:

   (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;

   (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);

   (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;

   (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;

   (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;

   (f)     the capacity of:

   (i)each of the child's parents; and

   (ii)any other person (including grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (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;

   (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;

   (i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (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;

   (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;

   (m)    any other fact or circumstance that the court thinks is relevant.

6. The primary considerations are only two.  There is, sometimes, a difficulty in working the two together.  The first of course, relates to the child's right to appreciating the benefit of a meaningful relationship with both parents.  To the parent's credit here, T does have a meaningful relationship with both his parents.  It has not been easy, it has had an effect upon the child, but not withstanding the criticisms, he still loves his father, appreciates the time he has with his father, and wants in a perfect world, to have more opportunity to spend time with his father. 

7. There is a benefit to this child in a meaningful relationship with both of the child's parents.  But there is, as is set out in sub-s.(b), a need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence.  There is, psychological harm occurring to this little boy.  The parents are hopefully now, fully aware of the effect of their behaviours upon the child and will take the appropriate steps in relation to that.  One would think that if nothing else, each parent appreciates the need to ensure that this child's life from now on is settled, stable, happy and secure, and that he is able to make both parents happy, and make himself happy, by having a relationship with both his parents.

8. There is no physical violence.  As I commented before, that is something that can only be appreciated by all, including the child.  But the parents need to be aware of the fact, that their actions, and reactions to each other have been harmful to the child, and need to be dealt with and dealt with appropriately.  I do no think at this stage however, particularly when the assessment is clear that there is a meaningful relationship with the father, and that it is beneficial, that the need to protect the child would be such as to override the considerations of the benefit of a meaningful relationship, with the father in particular. 

9. I turn then to the additional considerations as set out in sub-s.(3).  In particular, the 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, is a factor to be looked at.  T is speaking clearly here, of what he wishes in relation to a relationship with both parents.  He wants to continue to stay with his mother, and he wants, if the father is living closer, to have the opportunity for more regular interaction with him.  When one is mindful of the definition of significant and substantial time, the mother must of course be aware of the fact, that if the father were in the same locality it would involve, time during the school week, and one would think more than simply, each alternate weekend. 

10. Significant and substantial time is clearly more than the old thinking of alternate weekends and school holidays.  But, the child's wish is also clear, in that he does not wish to live with the father, if that would remove him from the mother's household, and does not wish to even consider a shared parenting arrangement, at this time.  I was concerned in that particular regard, that the Family Report writer commented upon the statements made by the child, when she quite properly, asked him about what advice he would give to other children in his situation.  She didn't try and pin the child down to what he wanted, but perhaps gave him the escape of saying this is what others should do. 

11. The answers were telling.  What he would give advice to other children about was, as Ms Woodcock put it,

    "just to try and convince yourself that you would like to spend one week with each". 

    That is not necessarily a statement by the child that he wants one week with each.  It is a statement of what he might have to do, if he were that other child and had to put himself in a position of deciding where he would like to be.  This child is a troubled little boy.  It is clear from the assessment of Ms Woodcock, and it is clear, from so much of the evidence, that is before the Court. 

12. His advice to the parents, of how a break-up affects a child, and what they should do, was, in fact, telling.  I don't recall ever hearing a greater cry from the heart, than at this comment, which was simply to the effect that

    'it really sucks'. 

    I don't think I could have put it more eloquently myself.  This child has been hurt by the breakdown in his parent's relationship and his parents have to live with that.  They have to deal with it appropriately and ensure that it stops.  To fail to do so is a total abrogation of their responsibilities as a parent. 

13. They would be the subject of criticism, no doubt, by Courts and otherwise if it continues.  But they will be the subject of the most dreadful reaction from the child, in that, he could easily find himself not wishing to continue his relationship with either parent.  It would be a tragedy for all concerned.  One can only hope that the parents are aware of that and both act appropriately to ensure that this little boy is no longer hurt, as he has been to date. 

14. I have commented already about the nature of the relationship that the child has with the child's parents, and with other persons significant.  It is good.  It is fortunate that, that is the case, and it is something that must be fostered and developed. 

15. Sub-section (3)(c) of s.60CC, requires that the Court consider the willingness and ability of each of the parents, to facilitate and encourage a close and continuing relationship, between the child and the other parent. Both parents have, perhaps, to some degree, fallen short of that willingness and ability. But credit must be given where credit is due. Notwithstanding the difficulties that the mother has had, she has put those to one side. She has been as flexible as one could have expected, and this child has grown to have a meaningful relationship, with his father.

16. I am not so confident, that if the circumstances were reversed, there would be as great an opportunity for this child to continue the relationship with the mother.  The father would no doubt ensure that the child attended on the times that were required, pursuant to any orders.  I gained the distinct impression, perhaps because of his military background, that he was very aware of the importance of compliance with orders, and the requirement to ensure that things are seen to be done appropriately. 

17. I have far less confidence however, that he would be able to put his attitudes, and his feelings toward the mother to one side, such that they would not, in time, have an effect upon the child.  I am far more inclined to the view, that whilst both parents would do their best to facilitate and encourage the relationship that the child has, with each parent, the mother has, to use the vernacular, the runs on the board, and would continue to do so. 

18. Sub-section (d) is a significant factor here.  It requires that the Court give consideration to the likely affect of any changes in the child's circumstances, including the likely affect on the child of any separation from either his or her parents or other child or other person.  I have commented upon such matters at length already.  This child is already disturbed.  I am mindful of the adage, appropriate more often than not, in relation to medical practitioners, which is, first of all, do no harm.

19. One simply does not know the effect upon this child, of uprooting him from the only home he has known, from the school that is the only school that he has attended and from the friends and the friendships that he has developed over eight years or so.  Then, placing him in Puckapunyal, in a regimented environment, with persons unknown to him.  He would be required, as I understand the evidence, to travel to high school by bus, in a different system of education.  He already expresses to the mother a failure to appreciate bus travel and one would wonder how he would cope with that, in another state.

20. More particularly, however, there was little evidence of what the father might have proposed in relation to the child.  He was questioned at length as to what might be the circumstances if he were required, to use the common term in North Queensland, go out bush, with his army duties, or to be placed somewhere else.  He had given little thought, in my view, to what those arrangements might be, and I am far more inclined to the view, that the child remaining in T, in the household of the mother where he has been for the whole of his life, is a far more ready recipe for a successful future development of the life of this child.

21. Sub-section (e) requires consideration of the difficulty and expense of the child spending time with and communicating with the other parent.  It is a factor that has been dealt with for the last 10 years.  It is not easy, but it has to be continued to be dealt with, and in any event, whether the child was with the father or the mother, the difficulties and expense would continue.  I do not see it as so much as a factor, which would significantly influence a determination, in relation to this matter. 

22. Sub-section (f) relates the capacity of each of the child's parents, and of 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.  On the face of it, both parents could deal appropriately with the emotional and intellectual needs of the child.  There is a question as to the mother's past dealing with the intellectual needs of the child, if one includes in that the educational needs and requirements for the child.  He has had an appalling school attendance over the last few years.  To continue to do so, and to allow that to affect the child in the manner that has done in the past, is a failure to properly parent. 

23. I am inclined, however, to the view, that the mother is mindful of the need to take the step up to ensure that she makes those decisions, and that as difficult as it may be, T does what he is told.  It is not easy to parent teenagers, all of us who have them, know that.  But it is absolutely essential that it occur.  I am satisfied that the mother would do so.  If she fails to do so, no doubt, the Court will hear of it, and different considerations arise, because you cannot continue to allow irresponsible parenting to go on. 

24. On the face of it, I am satisfied that both parents could, and would certainly into the future, be able to meet the child's emotional and intellectual needs, and in so far as the emotional needs of the child is concerned, I am perhaps, more inclined to think that the mother is more cognisant or sensitive to those, than is the father.  He still, as was indicated by Ms Woodcock, displays some anger toward the mother, even after 10 years following the break-up of the relationship.  That no doubt, would be something that would be picked up upon by the child, and it is not in the best interests of the child's emotional development. 

25. My assessment in relation to this matter generally would be that, each parent could meet the needs of the child, but that the present situation with regard to the mother, particularly now being aware of the absolutely essential nature of the education of the child, would be able to meet those needs. 

26. I do not need specifically to turn my mind to those matters set out in sub-ss.(g) and (h) of sub-s.(3), other than to say that there are no specific characteristics of the child that need to be considered, nor are there considerations with regard to Aboriginality or Torres Strait Islander culture. 

27. Sub-section (i), is, to some extent similar to those matters set out in sub-s.(f).  It requires the Court to give consideration to the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child's parents.  Each has fallen short of a perfect and appropriate attitude to the child and to the responsibilities of parenthood.  There have been difficulties in communication.  There has been a lack of respect as between the parents, and the child has picked up on that. 

28. As I have indicated however, I am more inclined to the view, that whilst the mother has fallen short of what might, in a perfect world be required, she has certainly in the circumstances, done as good a job as could have been expected, and her responsible approach to the parenting of the child, including the fostering of the relationship that the child has with the father, is as good a guide for the future, as one can expect.  

29. I am not so sure of the father's attitude to the responsibilities of parenthood, because as I have indicated, I am very much of the view, as was the report writer, that the father continues to harbour anger and resentment toward the mother, and that as a result of that, he would not properly be able to put those concerns to one side, and ensure that all of the needs of the child, including the right to foster a meaningful relationship with the mother, and to develop that relationship would be able to occur.

30. Sub-sections (j) and (k) relate to issues of family violence, and as I have indicated, there are no such issues, in relation to this matter, and therefore they are not necessarily required to be considered.

31. Sub-section (l) of s.60CC(3), requires that the Court consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings, in relation to the child.

    
    

    I have commented many times over the years, that I am unfortunately, unable to make such an assessment.  One simply does not know what the future holds.  It can only be hoped, that the orders that are made, put in place a framework, from which the child's rights to a relationship with both parents can develop, and grow.  It is impossible to say that they would be least likely to lead to further proceedings. 

32. In this instance, for example, I have assessed that the mother will make a far better fist of the obligations in ensuring that the child's educational needs are met than has occurred in the past.  If she does not do so however, there may be further proceedings.  I am not necessarily convinced that the father can stop the demeaning and denigrating means of communication with the mother.  But it may occur, and circumstances may very much change along with the wishes of the child, such that, if there was not agreement, in two or three years, a further proceeding would be necessary, because of radically changed circumstances. 

33. As I say, what can only be hoped in the orders that are to be made is that they provide a framework for future growth and development such that, because the parents and the child work together, there is not a need for the institution of further proceedings. 

1. Section 60CC(3)(m), is perhaps a catchall at the end. It requires that the Court give consideration to any other fact or circumstance that the Court thinks is relevant. In this matter there is one other relevant consideration, and I have already touched upon it. It is the fact that there are siblings of this child in T. He has three older brothers and an older sister. Two of those older brothers live in the same house as him, and the evidence is clear that he has a close relationship with them.

2. To make any orders, which would sever that relationship, fails to recognise that this child has a right to a meaningful relationship, not only with this parents, but also with others important and significant in his life.  When one looks at that relationship, and the possible effect of any changes in the child's circumstances and therefore the effect upon the child, the relationship with the siblings is a significant factor.

3. As is perhaps, and I would hope, clearly obvious, from the lengthy reasons that I have given in relation to this matter, both parents could have, and should have, done better in relation to this child.  It is a tragedy, that the expert evidence before the Court gives rise to a concern as to the future mental health of this child.  It is troubling to me, as the Judicial Officer required to hear the matter and it must be terrifying for the parents to think, that their actions have in some way lead to harm to this little boy, because that is what has occurred. 

4. One can only hope that these proceedings, these reasons, the report from the report writer, and otherwise, is, a wake-up call for all, that their responsibility is to this child.  Not necessarily meaning that they will get what they want, because parents, I think, often find that what they want comes second to the best interests and the welfare of the child.  It is one of the principle roles of parenting.  The expectation is that each parent will do all that they properly and responsible can to ensure that the child's needs are met, and on many occasions that means changing their wishes, changing their approach, and changing their attitudes. 

5. Now is the time when that must happen in relation to this child.  Each needs to recognise that it is the child's right, and their responsibility to ensure that this little boy, in years to come, looks back favourably, at least upon the last five years of his childhood.  Unfortunately, it is a little late to think that he can properly look back on the last 10 years, that have just gone by. 

6. I do not intend to make an order with regard to the father ensuring that he is available for the majority of time that he is with the child.  The father will make appropriate and proper parental decisions in relation to the care of the child, when the child is in his care, just as the mother is expected to do, when the child is in her care.  One would hope, however, that that would include a recognition, that if for some reason, he was unable during a holiday period to take any time with the child, that he would not require the child to be placed in care or otherwise, but would communicate and discuss with the mother, alternative arrangements, and that she, would be flexible enough, to reconsider the position.  For example there might be a change in a June/July holiday for an Easter holiday, in a year to come.  The fact is here that this child's best interests must take priority over the specific arrangements.  But, otherwise the orders are in place. 

7. I do not intend to accede to the mother's request in relation to the name.  There are factors that might influence me one way or the other, but as I indicated, there appears clearly to have been a position that the child was known by the name of C, up until separation.  More significantly, the child has for school purposes at least, been known by the name of C for at least the last two years.  If nothing else, there needs to be finality in relation to this matter.  The child knows who his parents are, provision of some attachment and affiliation with his paternal side is appropriate, particularly when he will be more primarily living in the care of the mother. 

8. Whilst I generally do not do so, I intend to put in place an injunction in relation to this matter.  It relates to non-denigration.  In other words, and I do not suggest that this has happened but if T's siblings were to be critical of his father, the child should be removed, and they should be made aware of the fact that they have obligations in relation to ensuring that this little boy's relationship, with both his parents continues.  Similar considerations arise in relation to the father, and his household. 

9. For the reasons that I have given in relation to this matter, therefore, I intend to make the following orders in relation to the proceedings.

I certify that the preceding one-hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:  C Herbst

Date:  27 July 2007