Carl and Watson (No 2)

FAMILY COURT OF AUSTRALIA

CARL & WATSON (NO. 2)

[2010] FamCA 335

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Carl

RESPONDENT:

Mr Watson

FILE NUMBER:

SYC

1258

2007

DATE DELIVERED:

29 April 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

9-11 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

COUNSEL FOR THE RESPONDENT:

Ms Falloon

Orders

The parties have equal shared parental responsibility for the child, J (“the child”), born … August 2006, subject to the limitations as hereinafter set out.
In relation to the child’s educational program:
(a)the mother is to consult with the father in relation to any significant decision in relation to the child’s education.
(b)in the event that the mother and the father are unable to agree on a significant matter in relation to the child’s education they are to meet and discuss their disagreement with a Family Consultant, or such other mediator as they may agree to in writing, and to use their best endeavours to resolve that disagreement by agreement.
(c)in the event the parties are unable to resolve such disagreement within 21 days, or such further time as the parties may agree, the mother shall for a period of two years from the date of these Orders have sole parental responsibility in relation to the child’s education and the right to make a determinative decision on the matter, in discharge of her responsibility given by these Orders.
Nothing in these Orders will prevent or prohibit the father from attending any function or event at the child’s school which parents ordinarily are invited to attend, and including parent/teacher interviews, or from receiving any communication from the school about the child or about activities in which the child is involved, and from being involved in any such activities.
The child is to live with the mother at times when he does not live with the father.
The child is to live with the father as follows:
(a) until the child commences school:
(i)in week one of every two, from the conclusion of pre-school on Tuesday until the commencement of pre-school the following Tuesday; and
(ii)for four continuous periods of seven days in each year nominated by the father two months in advance.
(b) when the child commences school:
(i)in week one of every two, from the conclusion of school on Friday to the commencement of school on the following Friday.
(ii)one half of each school holiday period with the father alternating between the first half thereof in even numbered years and the second half thereof in odd numbered years.
(iii)from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day in even numbered years and from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day in odd numbered years.
On the child’s birthday the child spend time with the parent with whom he is not living for a period of not less than three hours if that day is a day care/pre-school or school day. If the child’s birthday falls on a weekend or holiday, that he spend time with the parent with whom he is not otherwise living from

2.00 pm on the child’s birthday until 9.00 am the following morning.
Where necessary, these Orders be suspended to enable the child to spend not less than three hours with the mother for the mother’s birthday, the maternal grandmother’s birthday and the maternal grandfather’s birthday.
Where necessary, these Orders be suspended to enable the child to spend not less than three hours with the father for the father’s birthday, the paternal grandmother’s birthday, the paternal grandfather’s birthday and the birthday of the child’s half sibling.
Where necessary, these orders be suspended to enable the child to spend time with the parties during the Easter period, being the period from 8.00 am on

Good Friday until 5.00 pm on Easter Monday as follows:
(a) in each odd numbered year with the mother;
(b) in each even numbered year with the father.
The child spend time with the mother from 5.00 pm Friday until 5.00 pm Sunday on the Mother’s Day weekend.
The child spend time with the father from 5.00 pm Friday until 5.00 pm Sunday on the Father’s Day weekend.
The child spend time with the parties at other times as agreed.
For the purpose of the child moving between the parents on non-school or non-preschool days:
(a)where the child has been residing with the mother and is to go to his father the mother will deliver the child to the father’s place of residence at the commencement of that period; and
(b)where the child has been residing with the father and is to go to his mother the father will deliver the child to the mother’s place of residence at the commencement of that period,
If the father’s partner, Ms M, is willing to facilitate the child’s changeovers from the care of one parent to the other, the mother shall accept her assistance in that regard with courtesy and consideration.
Each parent shall do all things necessary on his or her part to facilitate the child having telephone communication with the other parent at any reasonable time, but in any event shall ensure that the child is available to receive a telephone call from the other parent between 6.30 pm and 7.00 pm each alternate day.
The mother is to have the responsibility for the day-to-day care, welfare and development of the child whilst the child lives with her and the father is to have the responsibility for the day-to-day care, welfare and development of the child whilst the child lives with him.
Pursuant to section 65L of the Family Law Act 1975 (Cth) these Orders are to be supervised, as far as practicable, for a period of two years by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court.
Each party is to keep the other informed of their addresses, landline telephone number and contact details, including mobile telephone numbers.
Neither parent shall make any decision relating to a long-term issue or extra-curricular activity for the child without first seeking the views of the other parent and taking those views into account when making the decision.
The father shall forthwith purchase an exercise book for the purposes of the parents communicating with each other about the child (“the communications book”) to be used for:
(a)advising about matters arising in the day-to-day care of the child, including as to any illness and/or medication;
(b)notifying particular requirements in connection with the child’s schooling;
(c) providing information about the child’s extra-curricular activities;
(d)suggesting a particular course of action with respect to a long-term issue about which a parenting decision needs to be made;
and each parent shall ensure that:
(e)the communications book remains with the child when he moves from the care of one parent to the other; and
(f) the communications in the book are always civil and courteous.
The parties are restrained from making critical, insulting or derogatory remarks in relation to the other party in the presence or hearing of the child and are at all times to communicate with each other in polite and respectful terms.
The parties are not to permit any third party to speak about either party in a manner that is critical, insulting or derogatory in the presence or hearing of the child.
Each party is to keep the other informed in relation to all medical dental or other health related treatments being undertaken by the child and the identity of the treating professionals.
In the event that either parent proposes to take the child to travel outside Australia then that parent shall, not less than two calendar months prior to the intended date of travel, provide the other parent with:
(a)a written itinerary, including departure and return dates and times and the proposed mode(s) of travel;
(b)addresses of any places where the child will stay while he is outside Australia;
(c)telephone numbers on which the child can be contacted while he is outside Australia.
Either party is entitled to remove the child from Australia to travel overseas within the holiday times prescribed herein, provided that the travelling parent gives to the other parent the notice provided in the previous Order.
Upon written notice being given by the father to the mother pursuant to Order 25 above, the mother will do all acts and things necessary to cause the child’s passport to be delivered to the father or to be processed and made available to the father, and the father will return the child’s passport to the mother at the conclusion of the trip.
Within a period of four months each party is to enrol in and attend a Parenting After Separation course as nominated by the Family Consultant.
Pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

THE COURT NOTES that the parties are aware that the perception by the child of conflict between them would be likely to be damaging to the child and it is ordered that:

The parties are to do all such acts and things necessary to resolve any disagreement between them without open conflict so as to shelter the child from any psychological damage or harm should such disagreement arise.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1258 of 2007

MS CARL

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the parents of

J, born in August 2006, seek orders in relation to his parenting arrangements.
The parents each love their child and the child loves each of them. The parents do not disagree on these matters. Each of them says of the other that they are a good parent and no fear is held as to the care of the child whilst he is in the other parent’s care.
Each of the parents acknowledges there has, nevertheless, been significant conflict between them and that a lack of effective and timely communication has been a hallmark of their relationship.
Each of the parents expresses some cautious optimism that the behaviour conceded by them in evidence to have been at the least unhelpful, is now recognised as such, and that they have begun to develop and will continue to develop the ability to both communicate and behave in an improved fashion.
There have been disagreements between the parties on questions relating to the child’s education, with the father disagreeing that the child should attend preschool as often as the mother would like (presently two days per week).
The mother has said that the father has expressed his disagreement in such a way that the child’s attendance at preschool, whilst with the father, has been attended with distress and oppositional behaviour.
The mother has, it seems, no such problem with the child. It is suggested that the father has demonstrated separation anxiety in relation to the child and that in fact the child himself is not demonstrating a separation anxiety from the father but rather responding to the father’s anxiety. Whatever the aetiology of that problem of separation it appears that the problem has been resolved.
What, in these circumstances, are the arrangements which will best promote the best interests of this child and what orders should be made as a result?

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In December 2004 the parents commenced living together.
In May 2006 the mother, then six months pregnant, moved out of the residence she shared with the father.
In early August 2006 the father spent two weeks at the mother’s residence before the birth of the child.
In August 2006 the child was born and the father was the mother’s birth partner.
Following the discharge of the mother and the child from hospital, the father stayed at the mother’s flat to assist with the child’s care.
In September 2006 the parents agreed about the time the child would spend with the father.
On 25 October 2006 the father moved to premises at R. The father then went to the mother’s flat in the mornings and at night to assist with the care of the hcild, and further cared for the child for approximately five hours on Saturday or Sunday.
On 27 October 2006 the parents argued and the father left the residence.
On 3 November 2006 the parents attended mediation at Relationships Australia on which occasion the mother said she wanted to work on Thursdays.
In late November 2006 the mother and father agreed to extend the child’s time with the father to ten hours on Thursdays and Sundays, as well as continuing the arrangements for the child to be cared for by the father in the morning and at night.
On 25 December 2006 the parents disagreed about arrangements for Christmas Day. The mother scratched father’s arm, and left marks on his arm.
In January 2007 the mother suggested the father take the child for an entire day on Thursday and Saturday or Sunday from when he woke. The father continued to care for the child on other mornings as and when requested by the mother.
On 22 February 2007 the mother filed an Initiating Application, at which time the child was five months of age, seeking interim and final orders that the child live with the mother and spend time with the father for eight hours on each Thursday, one day on each weekend and for two hours each Monday and four hours on each first and second Friday of every five week cycle.
On 2 April 2007 a Memorandum of Case Conference was produced by the Family Consultant, Ms K.
On 26 April 2007 the father filed a Response to Initiating Application seeking interim and final orders. Final orders were sought in the following terms:
(1)That the parties’ son [J] born […] August 2006 ([the child]) reside with or spend time with the Respondent as follows;
1.        From 9am Thursday until 9am Friday;
2.        From 5.00pm Friday until 9.00am Saturday;
3.         From 9am Sunday until 9am Monday.
4.         From 6.30am Tuesday until 9.00am Tuesday
5.         From 6.30am Wednesday until 9.00am Wednesday.
On 16 May 2007 the parties were interviewed together by the Family Consultant and a Chid Dispute Conference Memorandum was produced.
On 25 May 2007 interim orders were made by Federal Magistrate Sexton, inter alia, as follows:
(1)That the parents have equal shared parental responsibility for the child [J] born […] August 2006. ([“the child”])
(2)      [The child] live with the mother.
(3)From Friday 25 May 2007 until Sunday 17 June 2007 [the child] spend time with the father each week as follows:
1.        From 12 p.m until 6.45 p.m. on Monday;
2.        From 9 a.m. until 5 p.m. on Thursday and
3.         From 9.a.m until 5 p.m on either Saturday or Sunday.
(4)From Monday 18 June 2007 [the child] spend time with the father each week as follows:
1.        From 5 p.m. Monday until 7 a.m. Tuesday;
2.        From 9 a.m. until 5 p.m on Thursday and
3.From 9 a.m. until 5 p.m. Sunday provided that in the event the mother has a special event on a Sunday which she regards as important for [the child], [the child] spend time with the father on that weekend from 9 a.m. until 5 p.m. Saturday.
(5)From Tuesday 19 June 2007, the father to provide the mother in writing details of [the child’s] overnight time to include at least:
1.        What [the child] has eaten;
2.        What [the child] has had to drink;
3.         How many times [the child] has woken in the night; and
4.         How long [the child] took to settle.
IT IS NOTED THAT [the child] spends time with the father’s parents two out of five Fridays from 1 p.m. until 5 p.m. and that the parties propose that this arrangement continue.
On 27 June 2007 the mother advised the father by email that she wanted to put the child on a waiting list for day care. The parents subsequently had a discussion about day care options and the mother expressed a preference for B Child Care Centre (“[B Centre]”). The father completed the B Centre waiting list form and paid his share of the deposit.
In about mid-2007 the mother said the father could spend additional time with the child on Saturday nights.
On 6 August 2007 the parties were interviewed separately by the Family Consultant and a Child Dispute Conference Memorandum was produced.
On 6 August 2007orders were made by consent for the child to spend time with the father each week for two hours on Monday and from 5.00 pm Wednesday to 5.00 pm Thursday. In addition, the orders provided that the father spend time with the child from 5.00 pm Saturday to 5.00 pm Sunday, provided that in the event the mother had a special event on a Sunday which she regarded as important for the child, that the child spend time with the father on that weekend from 5.00 pm Friday until 5.00 pm Saturday.
On 19 November 2007 the mother advised the father by email that she was to start working from Wednesday to Friday. The mother proposed that the child be with the father on Thursdays, with the paternal grandfather on Wednesday or Friday, and in a day-care centre on the other day when mother was working.
On 17 January 2008 orders were made by consent, including that the parents have equal shared parental responsibility and that until the child turns two years of age or the parents’ employment circumstances change, that he live with the mother on Monday, Tuesday and Saturday and on Monday, Tuesday and Friday night. The Orders also provided for time the child was to spend with the paternal grandparents. The child was to then spend time with the father on Thursday and Sunday, and on Wednesday, Thursday, Saturday and Sunday evenings. Orders were also made in relation to the child spending time with each parent at Christmas.
On 1 July 2008 the mother filed an Application for Final Orders seeking orders in relation to the child after he reached the age of two years. In summary and inter alia, the mother sought orders that the child live with the mother in each week from 8.00 am on Monday until 8.00 am on the following Wednesday and each alternate week from 8.00 am on Friday until 9.00 am the following Monday. The mother sought orders that the child live with the father each week from 9.00 am on Wednesday until 9.00 am the following Friday and in each alternate week from 8.00 am on Friday until 9.00 am the following Monday. Orders were also sought in relation to the child spending block periods of time with each parent prior to his attendance at school, and then for half school holiday periods with each parent.
On 11 July 2008 the mother emailed the father, seeking urgent answers in relation to the child spending the entire weekend of the mother’s birthday with her, and attending a daycare centre in Sydney for two days each week.
In August 2008 the mother told the father she wanted the child to attend day care for two days each week. The father said he was happy for the child to go to day care for one day, but otherwise he would care for the child.
On 20 August 2008 the father filed a Response to an Application for Final Orders, seeking orders which in summary included that the child live with the father from 8.00 am on Wednesday until 9.00 am on Sunday, in addition to orders in relation to Christmas and special occasions and other orders.
On 29 August 2008 the parents attended interviews with the Family Consultant, Ms E, for the preparation of a Children and Parents Issues Assessment.

On 31 October 2008 a Children and Parents Issues Assessment was prepared by Ms E.
On 24 November 2008 the mother told father she would be working five days per week from early 2009, and wanted to look at a child care facility, S Centre.
On 3 December 2008 the mother filed an Amended Application for Final Orders, seeking orders that the child live with the mother and spend time with the father each alternate week from 8.00 am on Thursday until 8.00 am on the following Friday, and in each other week from 8.00 am on Thursday until

8.00 am on the following Monday. Orders were also sought in relation to the child spending block periods of time with each parent prior to his attendance at school, and then for half school holiday periods with each parent.
On 8 December 2008 the father declined to go to S Centre with the mother and the child. It is asserted that the mother threatened that the father would lose “custody” of the child.
On 23 December 2008 the father filed an Amended Response to an Application for Final Orders seeking that the child live with the father from 5.30 pm on Tuesday until 9.00 am on Sunday, and with the mother from 9.00 am Sunday until 5.30 pm on Tuesday. From the child’s fourth birthday until he starts school the father sought orders in relation to the child spending two periods of seven consecutive nights with each parent. The father also sought orders in relation to Christmas and special occasions.
On 30 January 2009 the mother emailed the father seeking an answer “immediately – as in today” on the child attending B Centre on Tuesdays and Fridays.
On 1 February 2009 the parents discussed child care/pre-school arrangements for the child. The mother threatened to commence court action if the father did not agree with her proposal by 5.00 pm the following day.
On 4 February 2009 the mother commenced taking the child to child care on Tuesdays. The child also went to child care on Fridays when the father was overseas.
On 6 February 2009 the mother filed an Application in a Case, and a supporting affidavit, seeking that the child be enrolled at B Centre and that he attend B Centre on Tuesdays and Fridays each week. The mother sought that, to the extent necessary, Order 4 of the Orders of 17 January 2008 be varied to provide that on Fridays the child attend B Centre.
In March 2009 the child commenced day care on every third Friday, rather than being with the maternal grandmother on those days.
On 23 March 2009 the father filed an affidavit and a Response to an Application in a Case seeking orders for the child to attend B Centre each Tuesday.
On 19 March 2009 the father took the child to a doctor and offered to look after the child the next day. The mother said she would take the day off to care for the child.
On 20 March 2009 the mother collected the child and the father gave her the child’s prescribed medication.
On 21 March 2009 the father collected the child from the mother. The mother said she had taken the child to another doctor who said there was nothing wrong with him, and that the child went to pre-school on Friday. The mother said she had not given the child the medication and did not return the medication to the father.
The child subsequently developed an earache. On Sunday the father took the child to the Sydney Children’s Hospital at Randwick and he was prescribed medication. Following the night-time hospital visit, the father asked the mother to collect the child an hour later the next day. The mother and maternal grandmother arrived at the usual time of about 8.00 am, and the child was still asleep. The father asked the mother to obtain the child’s prescription and the mother rang the father’s doorbell until the child was awoken.
On 25 March 2009 interim orders were made by consent before Judicial Registrar Johnston, inter alia, that the mother do all things to facilitate the child’s enrolment at B Child Care Centre and that the parents facilitate the child’s attendance at child care on the days provided in the orders, and subject to specified contingencies. The parties reached agreement in relation to the payment of the child care fees.
In June 2009 the child stopped going to day care every third Friday and thereafter the child was with the father on Fridays.
On 1 December 2009 the parents and the child attended on the Family Consultant, Ms E, for Family Report interviews.
On 20 January 2010 a Family Report was prepared by Ms E.
On 10 February 2010 when the father was collecting the child from the mother, the mother said to the child, “You will be going to [B Centre] on Wednesdays from now on, rather than going to Daddy’s.” The child began crying. The father’s solicitor wrote to the mother’s solicitor.
On 11 February 2010 the mother swore and filed an affidavit in addition to an Application in a Case, seeking orders for the child to attend B Centre each Tuesday and Wednesday.
On 23 February 2010 the father filed an affidavit and a Response to an Application in a Case, seeking that the mother’s Application be dismissed.
On 24 February 2010 Orders were made by Justice Le Poer Trench that the child attend B Centre on Tuesdays and Wednesdays of each week.
On 5 March 2010 the mother filed an Amended Initiating Application seeking orders that she have sole parental responsibility for the child and that he live with the mother and spend defined time with the father until he commences school, in each alternate week from 8.00 am on Thursday until 6.00 pm Sunday, or Monday if a public holiday, and for up to four periods of seven consecutive nights in each calendar year. Upon the child commencing school the mother sought that the child live with the father in each alternate week from after school on Friday until 6.00 pm on Sunday, or Monday if a public holiday. In the alternate week the mother sought that the child live with the father from after school until 7.00 pm on a day to be agreed between the parties. The mother also sought other orders, including in relation to school holidays, travel, special occasions and specific issues.
On 5 March 2010 the father filed a Further Amended Response to an Application for Final Orders, seeking Orders which included that the parents have equal shared parental responsibility for the child and that he live with the father in week one of every two from the conclusion of pre-school or school on Tuesday until 9.00 am the following Saturday, and in week two from the conclusion of pre-school or school on Tuesday until 5.00 pm the following Saturday. The father sought orders in relation to school holidays and further periods that the child shall spend time with the parties, and other orders including in relation to communication and illness.

The Issues

The issues for determination in this matter are:
a)What orders should be made for the exercise of parental responsibility;
b)What time the child should spend with each parent;
c)Whether there is a risk of damage to the child from future conflict between the parents and, if so, to what extent. To what extent, given the whole of the evidence, does the history of this matter dictate the likely future; and
d)Is there a safe path between the scylla of potential danger to the child from possible continued conflict and the charybdis of a limitation of the level of his father’s care with all the benefits such care has for the child.

The Evidence

The evidence in this matter was given both by affidavit and orally in cross-examination. The Family Consultant prepared two Family Reports which were received into evidence by consent. The Family Consultant was not cross-examined.
In addition to the affidavits of the mother and father, further affidavits were filed and relied on by each party.
Affidavits were filed on behalf of the mother by:
a)A neighbour and friend, attesting to the fact that the child had formed a friendship with her child and that, in her observation and opinion, the mother is an attentive mother and speaks in an upbeat and positive fashion to the child about the father.
b)Her father, attesting to some unseemly behaviour on the part of the father at the commencement of their relationship and also later in their relationship. He attests to his own warm relationship with the child and his positive opinion of his daughter’s abilities as a caring and committed mother and to the fact that in his presence the mother has never made a negative comment about the father in the child’s presence.
c)Her Grandmother
, attesting to an unseemly interchange between the father and herself in relation to the child’s attendance at her

81^st birthday, and which account reflected no credit on the father. She deposed of her own warm relationship with the child and his warm, close and loving relationship with his mother and the child’s responsiveness to discipline. She also spoke of the child’s apparent interest and pride in his maternal family.
d)Her mother, who attested to her initial good relationship with the father and her observations of some damage to a picture and the assistance that she rendered to the mother at the time of separation from the father. She deposed as to her relationship with the child, which is on her account, affectionate and happy and she gave details of that involvement. The maternal grandmother went on to attest to her relationship with the father and her efforts to maintain a cordial relationship with him, and that on her account he acted inappropriately and on one occasion in March 2009 when the father asserted the child was sick, acted petulantly and rudely. In the interchange which followed, the father used, she says, language which was offensive. She goes on to say that despite her difficulties with the father she has always spoken positively about him to the child. She offers assistance for the care of the child in the future and her observations on the quality of the mother’s parenting. This witness was the only witness of the mother’s who was cross-examined by the father’s counsel. Her evidence seemed to me to remain substantially unshaken at the end of that cross-examination.
Affidavits were filed on behalf of the father by:
a)Ms M, who deposed as to her relationship with the father and the fact that she is presently pregnant by the father and is expecting a male child. She said she first met the mother not less than a year ago.
b)She is apparently sensitive to the mother’s need for reassurance, and in fact reassured the mother that she would not seek to usurp her position, but that she would be an affectionate friend and provide support for the child.
c)It seems that this interchange between these women was perceived by each of them as friendly and positive and it is said that they speak to each other easily.
d)Ms M is happy, she says, to assist in any way necessary to ensure that the relationship between the father and the mother improves. She refers of an incident when the child was sick and, notwithstanding the usual hour of the mother’s arrival, the mother came early.
e)The child had been up all night vomiting, she says, and had only fallen asleep at 5.00 am. It seems an incident followed in which the mother left and returned with police. Ms M deposed that the child on the next occasion of contact, suggested to the father that he was “dangerous”.
f)Ms M says that, in her observation, the father does not speak critically of the mother in the child’s presence and ensures that others do not. The father is encouraging of the child in his relationship with his mother and he had not, in the deponent’s presence, criticised or been negative to the child’s involvement in a child care centre.
g)She observed that the child appeared to get on well with the father’s parents.
h)Ms M said that her partnership with the father is intended to be permanent.
i)They have, it seems, discussed the forthcoming brother for the child with him and she says he appears excited about the idea and being a big brother. The child has spoken of what he intends to teach the baby when he is born.
j)She says that she and the child get along well and that she has confidence in the father’s ability to care for not only J but also her expected child, when she is not available to do so. She says that the pregnancy was as a result of a desire born of her observation of the closeness of the father and his son and their relationship.
k)The maternal grandmother is the father’s mother and is a community support worker.
l)She attested that she was a monthly visitor to the home of the father and his partner.
m)She spoke of her observations of her son as disclosing that he is a patient and nurturing father who tries to make the child’s life as pleasant and as untroubled as possible.
n)She has observed that her son and his partner are part of a neighbourhood network of parents and children. There is, it seems, a local park where the network of parents and children meet and play, in addition to meeting in their own homes.
o)The child and his father spend time at the park in the presence of others and she has observed her son giving a lot of time and attention to the child which she says that they both enjoy.
p)She comments on her son’s style of discipline which involves negotiation with the child and observes that the father is keen to encourage the child and, in the event that he is naughty, he is taken aside by his father and spoken to. The form of discipline impressed her, she says.
q)She describes the child as an intelligent little boy with excellent fine and gross motor skills and makes observations on her son’s encouragement of the child in music.
r)She has said in her affidavit that so close is the bond with the father that on occasions the child finds it difficult to separate from him. She says (and the evidence finds no contradictor for the statement) that the child dearly loves both of his parents.
s)Ms RL, is a Human Resources Manager, who has known the father and his son for about one year. She has two children; one aged 4 years and the other aged 18 months.
t)She deposed that she and her husband are good friends of the father and the children have a friendly relationship.
u)She described a number of activities undertaken by the father and his son, in addition to the father’s innovative play with the children gathered in the park.
v)She emphasised that she has never seen the father lose his temper or become frustrated with his son.
w)Ms T, who is a Registered Nurse, deposed that she has known the father and the child for a period two years.
x)She has a child and joins in the gatherings in the park.
y)She observes that she likes to see the father in the park because he organises fun activities there for the children. On hot days he brings along puzzles and organises play for the children there in the shade of local trees.
z)It is her observation that the child loves to be with his father and that the father is a “devoted, attentive and involved parent to [the child].”
The other significant evidence which came other than from the parties was the evidence of the Family Consultant, set out in a Family Report dated 21 January 2010. Neither party sought to cross-examine the Family Consultant but her Report was admitted into evidence by consent.
It was the Family Consultant’s recommendation that the child should live with the mother and have significant and substantial time with the father. That recommendation was made in January 2010. The writer, however, did not have the benefit of the evidence given in cross-examination of the parties and, having had the benefit of that evidence, it is not my intention to adopt the recommendation put forward but rather to provide for something more than the time proposed by the mother whose proposal just falls within the definition of significant and substantial time, but sparingly so.
The Family Consultant identified from her discussion with the parties the issues in dispute as being as follows:
(1)How [the child] will spend time and communicate with each of his parents.
(2)Each parent’s ability to support and facilitate [the child’s] relationship with the other parent and their extended family.
Further issues were identified by the Family Consultant during the assessment as being:
(1)The parents’ differing perceptions about what arrangements are in [the child’s] best interests.
(2)The litigious and conflicted nature of the parents’ relationship, their capacity to effectively communicate and to co-operate and the impact of this on [the child].
(3)Parental responsibility.
The Family Consultant referred to the apparent lack of ability of the parents to appropriately talk and listen to each other. This litigation has been ongoing as set out above. Litigation in my experience never brings out the best in people and this case is certainly no exception. Litigation tends to make people defensive and measure any communication in terms of what might be said of it in Court. I think that there has been a fair measure of that problem here.
The father, in his evidence, made reference to his concerns in that regard. The father also said that communication was impaired by reason of the aggressive nature of any approach to him by the mother. The mother told the Family Consultant that she did have “anger issues”, which expression I take to mean an inability to contain any frustration she feels and instead to readily express that frustration angrily. Anger is not a great aid to co-operative communication. In conference between the parties the lack of communication between them was commented upon.
It is noteworthy that the evidence received by the Court is that both parties have taken not only the critical comment of the Report to heart but the wise and perceptive words falling from Justice Le Poer Trench in an interlocutory proceeding and that handovers of the child between them are now attended with politeness and civility and with a determination on the part of the mother to concentrate on the things that will make the child feel comfortable. Both parties deserve commendation for acting in a positive way in the face of the criticism offered.
The father in his affidavit, filed on 5 March 2010 and which was following the release of the Family Report, said:
[The mother] and I have difficulty communicating at the moment. I realise how critical this is for [the child], both now and in the future. I have listened to what people including judges of this Court have said, including
Justice Le Poer Trench on 23 February 2010 about what [the mother] and I should be trying to do to improve our relationship as parents. That is why I am asking for orders that I hope will help us to be better parents for [the child].
I do not blame [the mother] for everything that has gone wrong. I have been critical of [the mother’s] behaviour. I have not responded to her as quickly as she might have wanted me to do. If I feel a communication with [the mother] is breaking down I generally will tend to shutdown and turn away, literally or metaphorically.
Counsel for the mother sought to put at nought this statement of self-insight and determination to do better. He asserted that it was a device of purely forensic purpose and with no commitment behind it. He referred to failings of the father in various ways since the making of the Family Consultant’s Report as evidence of his contention.
Not every insight and conversion is a sudden and immediate response to a blinding flash of revelatory light as on the Damascus Road. It can for some be a slow and even faltering process. Each of these parents, perhaps the mother more readily than the father, has responded to the image of themselves held up in the Family Report and in judicial comment and recognised the need to change. The path of the father along that road has perhaps been slow and with some stumbles along the way. However, I am confident that motivated by his love for his child and his understanding now evident of the importance of the absence of conflict to the child’s health and future development, that his insight is genuine and his commitment to another course determined.

The father is fulsome and ready with his praise of the mother’s care for the child as is the mother of his care. The mother and father are intelligent people and although their responses to each other have hitherto been inappropriate, each will I am sure benefit from further courses which will assist in their skills in staying child-focussed and jointly parenting the child, in addition to being able to better communicate with each other.
The discussion of joint parental responsibility undertaken by the Family Consultant was done without the benefit, as I have said, of the above evidence. In the climate in which she was reporting she sounded quite properly an alarm in relation to the effect of exposing the child to continued parental tensions and hostilities, including the dispute surrounding his child care arrangements. She observed that “poor parental co-operation and unsatisfactory communication raises concerns about how the parents would practically manage such an arrangement”, namely equal time with each parent. The Family Consultant goes on to express a pessimistic view about the capacity of the parties to secure a change in attitude and approach to matters of conflict so as to bring about a positive outcome for the child and she expresses reservations about joint parental responsibility.
Whilst it is my intention to grant a partial sole parental responsibility right to the mother in relation to education for a limited period, I otherwise do not have reservations about making an order for joint parental responsibility. The mother has expressed a desire to talk with the father, indeed her evidence is that “There is nothing more I would like”.
The father has acknowledged that he has faults in communicating. It is my view that balancing the present insight of the parties, their partial progress along the path of polite conversation and their clear desire to do better, that they will be able, given that each of them wants to do what is best for the child, to come to a position where there should be full joint parental responsibility.
However, in order to get to that point there needs, in my view, to be a time where the mother (who assures the Court she will consult the father) can provide a circuit breaker if there is disagreement on education, for a limited period of time. This should give her some assurance that engaging in discussion and consultation will not necessarily lead to litigation and it will permit in the short term a time for the parties to fully develop their skills in communication.
Ultimately of course all a court can do is make a decision. The one I have made is what I think is in the best interests of this child. It is for the parties to develop from their hearts and their minds and their increasing understanding of the child’s needs, a resolution of their differences which works to his benefit and protects him from parental conflict. In the last analysis it is only they together who can provide such a resolution and I urge them to constantly keep this in mind.

Credit

Neither of the parties was a witness without fault in the giving of evidence.
Even accepting the stress occasioned by litigation, the mother’s recall was flawed and surprisingly so on a number of occasions. She gave some unresponsive answers. She did make some admissions against her interest. She conceded that she had been angry and demanding, although seeking to justify the latter by reference to frustration she felt at not having timely answers to her requests for information from the father. She did not say that she was wholly blameless in the lack of proper communication between the parties.
The father’s recall was on occasions deficient and on occasions he did not make responsive answers. His style was somewhat garrulous and he had difficulty in containing his answers. The father sought to advocate his position but having said that he freely and openly criticised his own behaviour and acknowledged that he had been a contributor in no small measure to the lack of stress free communication between the parties. He maintained that his tendency to be averse to confrontation made him withdraw from that possibility and remain silent. He said he now had greater insight into how his behaviour might have been perceived by the mother and have promoted her reaction to some of it and, somewhat ruefully conceded, that he could have behaved better.
I make no general finding as to credit. The evidence I prefer on particular issues mentioned in this Judgment will be reflected in my findings.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

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

This child clearly will benefit by a continued meaningful relationship with each of his parents.
The mother concedes, as does the father, that the child deeply loves the other, and that each of them loves the child.
Each of the parents disclaims the suggestion that there is any attempt to disrupt the relationship with the other, although the mother says that it is, having regard to the conflict, necessary to withdraw the child from some part of his time with his father.
Although the mother proposes that the quantum of time spent by the child with the father will be reduced, she says that the quality of the time will be such that that there will be no change in the quality of relationship between the father and the child. Whilst it is true that it is often the quality rather than the quantity of time spent with a child which nourishes a relationship with the parent, the suggestion of the mother, given this child’s relationship with this father and his capacity to contribute to his life and development, means that the extent to which he can benefit from the father’s input will be limited by such a proposal.
The father asserts that the mother’s desire is fuelled by an erroneous view of the lack of importance of the relationship between himself and the child and represents an inappropriate method of dealing with the problems which have existed in communication between the parties and their different views of what is best for the child, particularly in relation to pre-school education. In his affidavit he speaks of his contribution to the child’s life and its importance for the child and he is supported in that by not only the laudatory comments of his mother but also by the observations of others.

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

In this case there is not a danger asserted of physical harm to the child, nor of abuse or neglect. There have been past issues of family violence. The mother concedes that she was violent to the father but says that this was at a time when she was suffering all the problems which tend to assail new and single mothers and was an expression probably of exhaustion and frustration. I accept that this is more probable than not.
The father concedes he ushered the mother forcefully from his premises when she intruded upon them. He too asserts that this was at a time when he had been up all night with the child who was sick and that he was suffering from lack of sleep and had dislike of the possible effect of the mother’s intrusion on his partner and the child, whom he had at last settled and who slept. The incident did not cover him in glory and he contritely conceded that the situation could have been handled better. I do not think that, in this case, family violence is such that it should be a disentitling factor for either party as a parent, co-parent or holder of joint parental responsibility. It seems to me that each of the parents has learnt their lesson and the father and mother have expressed regret and contrition in relation to those displays.
The present parenting seems on the evidence, and this is supported by the Family Consultant, not to have visited harm at this time on the child. I am of the view that, given the matters referred to above, the major danger of psychological harm to the child from conflict has abated and will continue to abate with the aids which I intend to put in place. I am impressed by the commitment of each of these parents to this child and it gives me cause to be optimistic about the future.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child, although approaching four years of age, has simply demonstrated his love for both his parents. He has not expressed a particular view and, even if he had, given his age it would not be determinative and would carry little weight.

(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)

The child has a loving relationship with each of his parents. He has a warm relationship with the father’s partner and he shows signs of being excited about a relationship he will have with the expected son of the father’s partner. He has a warm relationship with his maternal and paternal extended family and the friends and children apparently of each of his parents. Nothing in the orders that I propose to make will affect adversely those relationships.

(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

The evidence supports the view that each of these parties, notwithstanding their differences, have always spoken positively of the other to the child.
The mother is seen by the father as embarking on a course of removing the child from his care and this is denied by the mother.
I think that these parents have been ensnared in the web of litigation and have been unable until now to escape from it with all its capacity to create functional overlays, and distortion of perception.
I have confidence that their concern for the welfare of their child will motivate them, understanding that it is in the interest of themselves and the child to continue to 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

There is a change in the circumstances of the child proposed by my orders but given the child’s present age and his close and loving relationship with each of his parents and their declared desire and willingness to come to an understanding of what best serves the child’s needs, I have not taken the view that the change which I propose will other than provide a benefit for the child. The child will in the circumstances of the changes proposed, be able to maintain his relationships with his extended family and friends and will have the opportunity of developing a sibling relationship with his expected half-brother. He will be able to continue his warm relationship with his father’s partner.

(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

The parties do not live at a geographic distance from each other such as would pose any practical difficulty and expense for the child in spending time with and communicating with either parent and he will with ease be able 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 any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

Each of the parents concedes that the other has a capacity to provide for the needs of the child, including emotional and intellectual needs. The dangers for the child perceived in the history of parental interaction have not yet eventuated due to the determination of the parents and undoubtedly each them has a clear understanding of the danger to the child’s emotional health if that position were to change. Given their love for their child I do not think that they will allow that to happen.

(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

There is nothing particular to take into account under this heading, other than as previously mentioned.

(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

There is no evidence that the child is an Aboriginal or Torres Strait Islander child.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Apart from some past problems, each of the parents in their own way have demonstrated a positive and committed attitude to these responsibilities, however the father it seems has allowed the mother to bear, at least initially, much of the child’s costs. He asserts he will provide for his son in co-operation with the mother.

(j)any family violence involving the child or a member of the child’s family

I refer to my comments made above

(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

No such order has been made.

(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

It is my hope the parties, having seen the battlefield of this matter littered as it is with the cadavers of costs - costs in time, in money and in emotion - and having taken in that view, will recognise that far more can be achieved at far less cost by informed accord than discord. It is my hope and expectation that will be the case. I intend to provide an order for supervision of the orders that I have made so as to provide the parties with alternatives to further litigation should they disagree. They and the child will be well served if they avail themselves of those alternatives.

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

There is no such other fact or circumstance.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
It appears that substantially each party has taken the opportunities presented to participate in making decisions about the major long-term issues in relation to the child, and to spend time with the child and communicate with the child.
Although the difficulties hitherto in communication have made some joint decision-making difficult, on other occasions this has been possible.
The child appears to be maintained and supported.
I have in making my decision taken into account what has happened since the parties have separated and in particular of recent times.
Balancing the matters set out in section 60CC and the evidence in these reasons I conclude that the orders I propose to make will operate to foster the best interests of this child for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child. It is my view in this case for the reasons set out that a joint parental responsibility order (with some short term limitations) should be made notwithstanding that each of the parents has been violent toward the other in the past. The violence was reactive in each case to severe stressors at the time and it seems on more recent history that such is unlikely to be repeated. Each of the parties has acknowledged the inappropriateness of their behaviour and I detect an attitude of regret concerning those incidents.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests. Subject to the exception which I propose to make for a period of time as to education, I have formed the view on the evidence that is in the best interests of this child to have the benefit of their parents holding joint parental responsibility for him. Each of them has something positive that they can contribute to the decision-making process for the child.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
Given the nature of the relationship of the child with each of his parents, the contributions that each of the parents can make to his welfare and development, the change in attitude of the parents and the development of insights into themselves and the potential effects of wrong behaviour on the welfare and development of their son, and their ability thus far to promote the child with the other parent, I propose that there be an order that the child spend approximately equal shared time with each parent.

I have confidence that the parties have the ability to develop a modus vivendi to get along sufficiently well and to develop a working relationship. The orders that I propose will, I believe, aid that.
The parties in their care of the child have primarily been child-focussed in their decision-making, although they have disagreed on particular decisions. They have, thus far, been on the whole able to keep the child “out of the middle”.
Each of the parties has expressed the wish to be able to make shared parenting work. I am confident that they mean what they say. The amelioration of the mother’s doubts as to whether it can so work will be assisted by the orders that I propose and better enable her to give effect to her stated desire. The father, having come to realisation of the dangers of the path jointly trodden with the mother thus far, will I think have available to him a climate in which true consultation can take place and in which his relationship with his son is not seen by him as being under threat.
Each of the parents has expressed confidence in the capacity of the other to parent and the mother has expressed pleasure at her son having the support and care which the father’s new partner can afford the child when with his father.
Each of the parents have understanding or flexible workplaces it seems and each of them will be able to so tailor their hours of work that the child will have competent care whilst residing with each of them.
The child has spent significant time with each of his parents.
I find that is practicable for the child to spend equal time with each of the parents.
I propose to order that the child will spend equal time with each of the parents.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 29 April 2010

[2010] FamCA 335

29 April 2010

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