CLARK & TRUMBLE - [2010] FMCAfam 1464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLARK & TRUMBLE

[2010] FMCAfam 1464

FAMILY LAW – Children – Parenting – application for residence – child aged 5 years – best interests of the child – parental responsibility – equal shared parental responsibility – equal time considered.

Family Law Act 1975, ss.60CA, 61CC, 61DA, 62G, 65AA, 68L

Starr & Duggan [2009] FamCAFC 115
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

Applicant:

MS CLARK

Respondent:

MR TRUMBLE

File Number:

SYC 7495 of 2009

Judgment of:

Scarlett FM

Hearing dates:

8 & 9 December 2010

Date of Last Submission:

9 December 2010

Delivered at:

Sydney

Delivered on:

21 December 2010

REPRESENTATION

Counsel for the Applicant:

Mrs Conte-Mills

Solicitors for the Applicant:

Goldrick Farrell Mullan

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Anderson

Solicitors for the Independent Children’s Lawyer:

Robertson Solicitors

ORDERS

All earlier parenting orders are discharged.
The applicant mother and the respondent father are to have equal shared parental responsibility for the care, welfare and development of the child [X] born [in] 2005.
The father is to have sole responsibility for making decisions about the day to day care, welfare and development of the child [X] whilst she is in the father’s care.
The mother is to have sole responsibility for making decisions about the day to day care, welfare and development of the child [X] whilst she is in the mother’s care.
The child [X] is to spend time with and communicate with the father as agreed between the mother and the father and failing such agreement as follows:
(a)During school term from after school on Friday until the commencement of school on Tuesday in Week One and from after school Tuesday to the commencement of school on Thursday in Week Two and continuing in the same pattern for each two week period thereafter;
(b)For the first half of each of the New South Wales school holiday periods in 2011 and all odd-numbered years thereafter and for the second half of the New South Wales school holiday periods in 2012 and all even-numbered years thereafter, excluding Christmas Day in each year;
(c)On the weekend on which Father’s Day falls in each year in the event that the child is not already with the father from 5.00 pm on the Saturday until the commencement of school on the Monday;
(d)From 2.00 pm on Christmas Day until 9.00 am on 27 December 2010 and all even numbered years thereafter and from 9.00 am on Christmas Eve until 2.00 pm on Christmas Day 2011 and all odd numbered years thereafter;
(e)On the father’s birthday as agreed between the parties and failing agreement:
(i)In the event the father’s birthday falls on a school day between Monday and Thursday both days inclusive from the conclusion of school until 9.00 pm;
(ii)In the event the father’s birthday falls on a Friday and the child is not otherwise spending time with the father on that day from the conclusion of school until 9.00 am on the Saturday; and
(iii)In the event the father’s birthday falls on a Saturday or Sunday when the child is not otherwise spending time with the father from 6.00 pm on the day prior to the father’s birthday until 9.00 pm on the day of the father’s birthday;
(f)On the child’s birthday in the event the child is not spending time with the father, as agreed between the parties and failing agreement:
(i)If the birthday falls on a school day other than a Friday, from the conclusion of school until the commencement of school in odd numbered years commencing in 2011 and from the conclusion of school the day before the birthday until the commencement of school on the birthday itself in 2012 and even numbered years thereafter;
(ii)If the birthday falls on a Friday from after school on the Friday until 9.00 am on the Saturday;
(iii)If the birthday falls on a Saturday from 12 noon on the day of the birthday until 9.00 am on the Sunday in odd numbered years and from the conclusion of school on the Friday before the birthday until 12 noon on the Saturday in even numbered years;
(iv)If the birthday falls on a Sunday from 12 noon on the day of the birthday until the commencement of school on the Monday in odd numbered years and from 5.00 pm on the Saturday before the birthday until 12 noon on the birthday in even numbered years; and
(g)At such other times as the parties shall agree.
Notwithstanding the provisions of Order (5), the child will spend the weekend on which Mother’s Day falls with the mother.
The child will live with the mother at all other times.
The father will have telephone communication with the child when she is with the mother:
(a)Through a telephone with a specific number for the child at times as agreed between the parties and failing agreement at 6.30 pm;
(b)The father is to be responsible for the cost of any outgoing telephone calls; and
(c)The father must permit the child to telephone the mother if the child requests him to do so at any reasonable time.
The mother will have telephone communication with the child when she is with the father:
(a)Through a telephone with a specific number for the child at times as agreed between the parties and failing agreement at 6.30 pm;
(b)The mother is to be responsible for the cost of any outgoing calls; and
(c)The mother must permit the child to telephone the father if the child requests her to do so at any reasonable time.
Neither party is to monitor or listen to any conversation between the child and the other parent.
Each party must inform the other of any medical specialist appointment for the child or any illness or injury sustained by the child requiring hospital treatment as soon as practicable.
The mother must keep the father advised of the names of the child’s school teachers and the contact telephone number of the school.
The mother must provide to the father copies of any professional reports from any psychologist, paediatrician or speech therapist relating to the child’s academic and social development.
The mother must do all things necessary to authorise the child’s school to provide to the father at his expense copies of all school reports, education plans, school newsletters, advices regarding school photographs and other information regularly sent to parents of children attending that school.
The mother must nominate the father as an alternate contact at the child’s school.
The father is at liberty to attend the child’s school for the purpose of any school function or parent teacher interview.
Neither party is to denigrate or criticise the other in the presence or hearing of the child or permit any third person to do so.
Each party is to attend a Parenting after Separation Course and a parenting program such as the Triple P program within six (6) months of the date of this order.
The mother and father are to do all things and sign all documents necessary to enrol the child at the [B] School for the commencement of the 2011 school year.
The parties are to make arrangements for the child to attend an Educational and Developmental Assessment to be completed by Dr B and each parent is to be liable for one half of the fee for the preparation of the report.
The Educational and Developmental Assessment to be completed by Dr B is to assess the following:
(a)The child’s current cognitive and intellectual functioning;
(b)The child’s literacy, mathematical and general academic progress;
(c)The child’s development.
The Educational and Developmental Assessment is to identify any deficits in the child’s cognitive and intellectual functioning, literacy, mathematical and academic progress, and general development and provide recommendations as to how any identified deficits can be addressed.
Upon receipt of the Educational and Developmental Assessment the parties are to make an appointment with the Principal of [B] School to discuss the implementation of the recommendations made by Dr B.
The mother must forthwith obtain a referral from a general medical practitioner for a paediatric assessment to be completed by Dr P at [S] Hospital and the parties are to share the costs of this assessment equally between them.
Leave is granted for a copy of the Family Report to be provided to:
(a)Dr B; and
(b)Dr P.
Within seven (7) days from the date of these orders the parties are to contact the [S] Family Support Service at [omitted] and make a referral for the intervention of that service.
Leave is granted for a copy of these Orders to be made available to [S] Family Support Service.
The Independent Children’s Lawyer is to retain instructions to represent the child’s interests until the child commences school in 2011.
Leave is granted to the Independent Children’s Lawyer to provide copies of all relevant documents admitted into evidence to Dr B for the purposes of the Educational and Developmental Assessment.
Neither party is to consume any alcohol or use any illicit drug at any time when the child is in their care or for twelve (12) hours beforehand.
The mother must not leave the child in the sole care of Mr P or permit the child to enter the [business] run by Mr P.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7495 of 2009

MS CLARK

Applicant

And

MR TRUMBLE

Respondent

REASONS FOR JUDGMENT

Application

This is an application about a little girl called [X], who is five years old. The applicant is [X]’s mother, and she seeks orders that [X] should live with her and the parents should have equal shared parental responsibility for her.
The father agrees that the parents should have equal shared parental responsibility, but seeks orders that provide for her to live with him during the week and with the mother on most weekends.
[X] is independently represented by a lawyer.

Orders Sought

The Independent Children’s Lawyer proposes orders that would provide that:
a)The parents would equal shared parental responsibility for the child, with sole responsibility for making decisions for her care, welfare and development on a day to day basis;
b)The child would spend time with the father:
i)During school term, from after school Friday to the commencement of school on Tuesday in the first week of each fortnight and from after school on Tuesday until the commencement of school on Wednesday in the second week of the fortnight;
ii)For half of the school holidays;
iii)From 9 am to 5 pm on Father’s Day
iv)Not on Mother’s Day; and
v)From 2 pm on Christmas Day to 6 pm on Boxing Day.
c)The child would live with the mother at all other times;
d)The father would have telephone communication on a specific number;
e)The mother would have telephone communication with the child in the same way;
f)The mother should keep the father informed of school matters, including professional reports;
g)Neither parent is to denigrate the other or members of the other’s family;
h)Both parents are to attend a Parenting After Separation Course;
i)Both parents are to attend a parenting program such as the Triple P Parenting program;
j)The child is to attend the [B] School;
k)An Educational and Developmental Assessment is to be completed by Dr B, which would a recommendation as to whether the child should repeat Kindergarten in 2011;
l)The parents should discuss the implementation of Dr B’s recommendations with the Principal of [B] School;
m)The child should be referred for a paediatric assessment at [S] Hospital;
n)The parents are to seek the intervention of the [S] Family Support Service;
o)The parents should refrain from consuming alcohol or illicit drugs when the child is in their care or for twelve hours beforehand;
p)The mother shall not leave the child in the sole care of a former partner, one Mr P; and
q)The mother should not leave the child in the sole care of her current male friend, Mr B, without the father’s written consent.
The orders sought by the mother are not dissimilar, except that she does not agree with the order relating to Mr B, as her counsel,

Mrs Conte-Mills, pointed out that it would be very restrictive on her.
The mother’s proposal is that (in summary):
a)The parents should have equal shared parental responsibility for the child;
b)The child should live with the father:
i)From after school Friday to the commencement of school on Monday every second week during school term;
ii)From after school Wednesday until the commencement of school on Thursday during school term;
iii)For half of the school holidays;
iv)From 2.00 pm on Christmas Day until 9.00 am on 27^th December in 2010 and even numbered years thereafter;
v)On the child’s birthday at specified times;
vi)On Father’s Day, for the weekend;
vii)On the Father’s birthday; and
viii)At other times as agreed;
c)The child should live with the mother at all other times;
d)The child would spend alternating Christmas periods with the mother;
e)The child would spend specified times on her birthday with the mother;
f)The child would spend Mother’s Day with the mother;
g)The child would spend specified times on her birthday with the mother;
h)The parties would have telephone communication with the child whilst in the care of the other parent;
i)The parents should arrange for an Educational and Developmental assessment by Dr B;
j)The mother should make arrangements for a paediatrician to undertake a full developmental assessment of the child;
k)The child should have speech therapy as recommended by her speech therapist;
l)The mother should arrange intervention by the [S] Family Support Service;
m)The child should attend the [B] School in 2011;
n)Neither party should denigrate the other in the presence or hearing of the child;
o)The parties should refrain from consuming alcohol or any illicit substance whilst the child is in their care or for twelve hours beforehand;
p)The mother should not leave the child in the care of Mr P; and
q)If either parent wants to take the child for a holiday outside the Sydney Metropolitan area they must give the other parent fourteen days notice and provide contact details.
The father did not submit a separate Minute setting out the orders that he sought, nor did he need to. He relied on the orders set out in his Response filed 26^th March 2010.
In his Response, the father seeks orders that:
a)The parents should equal shared parental responsibility for the child;
b)She would live with him during the week, from after school on Monday until the commencement of school on Friday, plus every third weekend;
c)She would spend weekends with the mother, from the conclusion of school on Friday to the commencement of school on Monday;
d)The parties would have telephone communication with [X] when she is with the other parent;
e)The parties should not denigrate each other;
f)The parties should refrain from consuming alcohol during the time the child is in their care and for twelve hours beforehand;
g)That the child should not be in the presence of intoxicated persons at any time;
h)That the mother should not leave [X] in the care of Mr P;
i)The parties should keep each other informed of their addresses and telephone contact details;
j)Both parents should be able to attend school and other activities involving the child; and
k)[X] should attend the [G] School.

Areas of Agreement

There are several areas about which the parties agree:
There is no issue that the parents should have equal shared parental responsibility for [X], or that each parent should be able to speak to her on the telephone when she is in the care of the other parent.
The parties agree that the child should spend time with the father on Father’s Day and with the mother on Mother’s Day. Neither parent cavils with the idea that each parent should be able to spend time with the child on her birthday.
The parties agree that they should not denigrate each other, at least not in the presence of hearing of the child.
Further, the parties all agree that the parents should not consume alcohol before or during the time when the child is in the care of that parent.
There is also agreement about [X] not being left in the care of Mr P.

Issues in Dispute

Essentially, the issues in dispute between the parties are:
a)Which parent will be the child’s primary caregiver;
b)What school will the child attend in 2011; and
c)What, if any, steps need to be taken in respect of the child’s developmental delay?
Each parent believes that [X] should live with him or her and spend time with the other parent. She has been living with the father. The Independent Children’s Lawyer supports the proposal that [X] should live with the mother.
The mother is of the view that [X] should attend the [B] School, where her half-siblings attend. The Independent Children’s Lawyer supports this proposal.
The father considers that [X] should stay at [G] School, which he considers to be the better school.
The Independent Children’s Lawyer has proposed that there should be educational and developmental assessment by Dr B, a psychologist, and a paediatric assessment by Dr P, a paediatrician at [S] Hospital. The mother agrees.

Background

The mother was born [in] 1968. She is 42 years old.
The father was born [in] 1969. He is therefore 41 years old.
The mother has two children from her previous relationship with Mr P. [Y] was born [in] 1996 and [Z] was born [in] 2000. They live with the mother.
The parties commenced their relationship in about June 2003 and started living together in October 2004.
The child [X] was born [in] 2005.
The parties separated on 15^th August 2009. The father took the child with him.
The mother asked the father to return the child, but he declined. The child did not spend time with the mother for about six months.
On 8^th December 2009, the mother filed her application for orders that the child should live with her on a week about basis during the school term and for half of the school holidays.
On 1^st February 2010 the father unilaterally enrolled the child to commence Kindergarten at [G] School.
The application came before the Court for the first time on

22^nd February 2010. On that day, both parties were represented, the father being represented by the duty lawyer from Legal Aid NSW.
On that day, the parties entered into interim consent orders, providing that, until further order:
a)They were to have equal shared parental responsibility for the child [X];
b)[X] would live with the mother from the conclusion of school on Tuesday 23^rd February to 7.00 pm on Sunday 7^th March 2010;
c)Following that order, the child would then live with the mother each week from the conclusion of school on Friday until the commencement of school the following Monday, and would then live with the father for the rest of the time;
d)Changeover would take place at school;
e)The parties would have telephone communication with the child when she was with the other party;
f)The parties would refrain from denigrating the other in the presence or hearing of the child;
g)The parties would refrain from consuming alcohol for 12 hours before or during the time when the child was in their care;
h)The mother would not leave the child in the sole care of Mr P;
i)The parties would keep each other informed of their addresses and telephone numbers;
j)The parties would notify each other of any illness suffered by the child; and
k)The parties would keep each other advised of all extra curricular activities and sporting events the child might attend.

It was noted that the child was currently attending the [G] School, but the orders were only to remain in place until the Court was in a position to decide which school the child should attend.
The father filed a Response and an affidavit in support on 26^th March 2010.
The parties attended a Child Dispute Conference with a Family Consultant on 29^th March 2010. No agreement was reached. The Family Consultant reported, in her memorandum to the Court, that:
Parents were unable to utilise the conference today to come to agreements. Communication and acrimony were acknowledged as problems in their parenting relationship. They presented polar views as to what most suits [X]’s needs and their respective relationships with [X] to date.[1]
[1] Family Consultant Memorandum to Court 29.3.2010
The Family Consultant noted that:

The parents disagreed about the amount of time the children lived with each other and where [X] should attend school.
The mother sought that [X] should attend [B] School and should spend an extra day with her during the week.
The father wanted [X] to stay at [G] School.
The mother expressed a concern that [X] should live with her and her (the child’s) siblings rather than with the father and the paternal grandmother, who has ill health and dementia.
The father did not appreciate the child’s needs as he had withheld from the mother for 6 months until recently.
The father took the view that:
The mother was unable to care for [X] due to her misuse of alcohol
The mother did not provide adequate routine and structure for the child.
The mother’s work patterns did not allow her to focus on the child’s needs.
The mother’s friends, especially Mr P, were not suitable company for the child.
The child had settled into school and should not be moved.

The parties attended a Child Inclusive Child Dispute Conference on 27^th April 2010. Again, no agreement was reached. The Family Consultant noted that the child expressed that she should go to the same school as her half sister.
The Family Consultant recommended that an Independent Children’s lawyer should be appointed.
On 24^th May 2010 an order was made that the child’s interests should be represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 and a Family Report was ordered. The application was listed for final hearing on 8^th and 9^th December 2010.

Evidence

The mother relied on the following documents:
a)Her Amended Application filed on 25^th November 2010;
b)Her affidavit sworn on 25^th November 2010;
c)The affidavit of Ms M sworn on 27^th November 2010; and
d)The affidavit of Ms C sworn on 16^th February 2010
All of those witnesses gave oral evidence and were cross-examined.
The father relied on his affidavits of 26^th March and 26^th November 2010. He was also subjected to cross-examination.
A Family Report under the provisions of the s.62G of the Family Law Act was prepared by Dr G. Dr G gave oral evidence on the first day of the hearing.

The Family Report

The Family Report was completed by Dr G on 29^th November 2010. For the purpose of that report, Dr G interviewed the following people:
a)The father;
b)The mother;
c)Ms C, the maternal grandmother; and
d)The child.
Dr G spoke by telephone to [names omitted], both of the [G] School. She also observed the child with her mother, and with her mother and her half brother [Y] and her half sister, [Z].
The Family Report identified these issues:
a)With whom [X] should reside, and what school she should attend;
b)The mother’s use of alcohol:
c)[X]’s developmental delays and how they might best be addressed.[2]
[2] Family Report 29.11.2010 at paragraphs [11]-[13]
Dr G interviewed the child, describing her as “difficult to interview”.[3] The child had difficulty concentrating and was not able to express any preferences about with whom she wanted to live or where she wanted to go to school.
[3] Ibid at [43]
It is noteworthy that the Dr G reported that:
[X] was very excited to be reunited with her mother after spending the previous five days with her father. She jumped up and down on the spot with happiness and excitement at seeing her mother. [X] had difficulty separating from her mother when I needed to interview the mother privately. She lingered in the hallway, leaning against the wall and refusing to return to the waiting room, even after her mother reminded her that [Z] and [Y] were waiting to play with her. Her mother explained that [X] has separation anxiety from her.[4]
[4] Family Report at [45]
Dr G had a lengthy three-way telephone discussion with the child’s class teacher and the Deputy Principal of [G] School. They reported that:
·It was clear when the child first started school that she had developmental issues and had not had school readiness input.
·She was immature in socialisation
·She obvious deficits in fine motor skills
·Her language skills were very poor and it was difficult to understand her speech
·Whilst she had improved during the year, she was still well below grade average
·She had significant learning and social delays, which the Deputy Principal believed would remain, whether the child repeated a class or not
·The school planned for [X] to progress to Year 1 where she would get assistance from the learning support team and possibly be able to receive one-on-one assistance in reading four times a week.[5]
[5] Ibid at [48]
The class teacher reported that she had told both parents many times that the child needed to consult a speech therapist and an occupational therapist.[6]
[6] Ibid at [49]
The class teacher and Deputy Principal expressed concern that the child’s homework was not being done and that neither parent had been supporting the child to the necessary extent.[7]
[7] Ibid at [50]
Dr G was told that the school was not in favour of [X] repeating kindergarten at [G] bay because she might get bored, but they were not opposed to her going to [B] School and repeating kindergarten there. [B] is a very different school from [G]; it is a much smaller school. The teachers at [G] would have lengthy discussions with the staff at [B] to support the child’s learning and developmental needs, should she go there.[8]
[8] Family Report at [51]
The Family Report provides a comprehensive and detailed evaluation, which was, with respect, most informative:
·There was nothing to indicate that the mother might have a problem with alcohol.
·The child should be spending half the school holidays with each parent.
·The child’s telephone calls should be private and uninterrupted, and not on speaker phone.
·The continuation of the current order putting restraints on the mother leaving [X] in the sole care of Mr P may be the most realistic solution to address the father’s concerns about him.
·The most serious issue is the concern about the child’s development. The assessment by Ms N, a speech pathologist, found the child to have a severe auditory receptive language delay disorder (1^st percentile) and difficulty with the social use of language. Ms N recommended that the child should attend therapy with a speech language pathologist, an occupational therapist, a developmental optometrist and a paediatrician.
·The child appears to be struggling at school and may have been too young or too immature to attend school, especially as she did not attend pre-school at all.
·It may be beneficial to enrol [X] in kindergarten at [B] School (where her half sister attends) as it seems unlikely that she would cope with first class “which is where literacy and numeracy begin in earnest”.[9]
·Repeating kindergarten does seem to be a viable alternative and doing this at another school close to the mother would be less confusing for [X] than seeing her peers progress to the next class with her left in kindergarten. This course of action has the additional benefit that [X] would be attending the same school as her half sister [Z], which would provide her with an additional source of security for the next two years while [Z] is still at primary school.[10]
[9] Family Report at [63]
[10] Ibid
Both parents were subject to criticism in the Family Report. Dr G expressed a lack of confidence in the adequacy of their respective parenting capacities.
As to the mother, Dr G said:
I am not convinced that the mother, who does home based work, has the resources to invest the time and energy in [X] that she needs. From the records from [C] School it would appear that the mother cannot presently manage her fourteen – year – old son in a way that sufficiently supports his learning needs. He is having significant and serious difficulties at school.[11]
[11] Ibid at [64]
The Family Report expressed a significant lack of confidence in the father’s resources to support the child, saying:
The fact that he withheld the child from her mother for six months indicates a serious lack of empathy and child focus. He did not impress at interview as having an understanding of the child’s developmental issues, blaming it on the mother for putting things in the child’s head. He blamed the mother for not enrolling the child in pre-school, notwithstanding that he claimed that he had been the primary carer. He did not take the child to any appointments with speech therapist or occupational therapist (I am happy to stand corrected on this) notwithstanding that the class teacher had impressed the importance of these interventions. Mr Trumble is in chronic pain and is caring for an elderly person with dementia. Thus his resources are quite taxed also.[12]
[12] Family Report at [65]
Dr G found that [X] had a strong attachment to her mother and separation from her elicited anxiety in the child. Primarily living in a family environment with her siblings may benefit the child’s development more than being an only child in the father’s household.[13]
[13] Ibid at [67]-[68]
The Family Report contains these recommendations:
a)That there be joint parental responsibility;
b)That the child has shared care with both parents;
c)That she attends [B] School in 2011;
d)That she spends every second weekend and two consecutive nights in the alternate week with the father;
e)That she lives with the mother at all other times during the school term;
f)That she spends half the school holidays with each parent;
g)That the parents should refrain from consuming alcohol in the twelve hour period before and during the time when the child is in their care;
h)That there be reasonable telephone contact with the child being given privacy during the calls;
i)That both parents be responsible for taking the child to medical or therapy appointments;
j)That both parents should receive a copy of the child’s school reports; and
k)The child be permitted to attend Christmas Day at the home of her maternal grandparents.[14]
[14] Ibid at pages 24-25
Dr G gave oral evidence on the first day of the hearing. She told the Court that, as a result of the assessment by the child’s school that she had developmental delays, she recommended an educational assessment by Dr B.
She said that there was an argument in favour of her repeating kindergarten. She suggested that the parents should have shared care of the child, because raising a child with this degree of developmental delay will require both parents to share the responsibilities. There are benefits for [X] to repeat kindergarten at [B] rather than at her present school. An assessment by someone like Dr B would assist in making this decision. The fact that [X]’s half sister [Z] also attended [B] was an advantage. Further, for vulnerable children with special needs a smaller school would be more comfortable.
Dr G said that [X] is attached to both parents. The present arrangements should change so that [X] lived primarily with her mother and her half-siblings. With her language deficits, her development would be better promoted in a family environment rather than just with her father.
The enforced separation from her mother was not in the child’s interest. There was nothing to indicate to Dr G that the father’s allegations of the mother’s abuse of alcohol were well-founded. There was no evidence either way.
In cross-examination by Mrs Conte-Mills of counsel, for the mother, Dr G said that having had very little contact with her mother for the period from August 2009 to February 2010 would have been very distressing for a child of that age. She would not be able to articulate that distress, due to her language difficulties. This is likely to impact on her social development and her educational development. It would be a significant factor contributing toward her developmental delay.
Dr G that a decision needed to be made immediately about school for [X], including repeating kindergarten and going to [B]. In a way, the year that the child had done is like an accelerated pre-school. Her language delays are so profound that she would not be able to articulate various things.
Further, Dr G said that [X] had been removed by the father from the mother for six months with minimal contact with the mother. This may have increased the deficits. The child would have been four and a half years old at the time and the deficits would have been pretty obvious. She also said that the child’s class teacher had expressed frustration that she had told both parents that this child needed therapy.
The father asked Dr G if anything that he had done since taking [X] into his care had made the situation worse. She replied that it was possible that being away from her mother for six months could have set [X] back. Not seeing her mother would have affected emotionally, which would have had an effect in other ways. She was not saying that this was the cause, but it would not have helped.

The Mother’s Evidence

The mother’s affidavit evidence was that the parties commenced their relationship in about June 2003 and lived together from about October 2004 until August 2008. The father had injured his neck in a workplace accident and went off work on workers compensation.
The father played an active role in the upbringing of the child since her birth. The mother had to return to work when [X] was four weeks old to earn money because the father was unable to work.
In August 2008 the parties’ relationship had become increasingly strained and the father moved out and went to live in his grandmother’s house. The parties still saw each other, but the father rarely slept over at the mother’s house. The father continued to spend time with the child on a daily basis but she very rarely slept at the father’s house.
The mother told the father on 15^th August 2009 that the relationship was not working and an argument ensued. The mother and her three children, including [X], went to a friend’s birthday party. The father did not go, but he attended later in the evening. The mother deposed that the father took [X] and ran to his car.
The mother tried to persuade the father to return the child between

16^th and 19^th August 2009, without success. She deposed that she drove to the father’s house on 19^th August 2009 to ask him to give the child back. She stated:
When I arrived at the Respondent’s house he refused to allow me to see [X] and through the fence I could hear her crying hysterically saying “Mummy” and calling for [Z]. I heard the Respondent take [X] and lock her in the house so I scaled his fence to retrieve her. The Respondent grabbed me and opened the gate and threw me out onto the street so he could lock the gate behind me.[15]
[15] Affidavit of Ms Clark 25.11.2010 at paragraph [20]
The mother deposed that the father denied her physical contact with [X] between 15^th August 2009 and 22^nd February 2010, despite her numerous requests.
The mother denied the father’s accusation that she was drinking to excess.
The mother deposed that between 8^th December 2009 and 23^rd February 2010 she saw [X] on three occasions:
a)On 13^th December 2009 for approximately two hours at [omitted] McDonald’s;
b)On 20^th December 2009 for a period of approximately two hours at [omitted] McDonald’s; and
c)On 1^st February 2010 for approximately 5 minutes on her first day at [G] School.
In May 2010 [X]’s teacher approached the mother with concerns about the child’s homework. She said that when the child brought homework home on a Friday afternoon she would assist her in completing that homework over the weekend.
As a result of [X]’s speech difficulties she was assessed by Ms N, a speech pathologist, at the recommendation of her school counsellor.

Ms N’s comprehensive report, prepared after assessment on

4^th September, 10^th and 23^rd October 2010 is annexed to the mother’s affidavit.
In her report, Ms N assessed the child to have:
a)A severe auditory receptive language delay/disorder;
b)Difficulty with organization of language for retell;
c)Difficulty with the social use of language; and
d)A severe difficulty with phonological awareness and literacy acquisition.
Ms N recommended:
a)Therapy with a Speech language Pathologist;
b)Occupational Therapy;
c)Consultation with a Developmental Optometrist; and
d)Consultation with a Paediatrician.[16]
[16] Assessment Report by Ms N, Annexure “F” to the affidavit of Ms Clark 25.11.2010.
The mother denies that she has an alcohol problem, saying that she drinks alcohol on social occasions only, approximately and rarely to excess.[17]
[17] Affidavit of Ms Clark 25.11.2010 at [54]
The mother says that she observed the father drink alcohol most days and was charged wit a low range drink driving offence in November 2008.[18]
[18] Ibid at [55]
The mother wants the child to attend [B] School. Her home is within the zone for that school. [Z] attends [B] School.[19]
[19] Ibid at [59]
In cross-examination by the father, the mother said that she had gone to work to support the family after [X] was born. She denied she was banned for three years from a club, or that she threw a schooner glass at anybody.
In cross-examination by Mr Anderson of counsel, who appeared for the Independent Children’s Lawyer, the mother denied that she had an alcohol problem. She further said that she was happy for an order restraining her from leaving [X] in the care of Mr P. She said that [X] had never been in Mr P’s sole care and never would be. She would not be taking the child to the [business] run by Mr P. Mr P was not an ideal person to be around [X]. He sees his children [Y] and [X] about once a month.
The mother said that she is now seeing a Mr B, but there is no proposal that they should live together. Mr B has no criminal history but did have a conviction for driving with the High Range Prescribed Concentration of Alcohol in his bloodstream, as a result of which he was disqualified for holding a driver’s licence for six months. He has three children who live with their mother in [B].
The mother also said in her evidence that the father had refused to let her see [X] for six months except on three occasions for a limited amount of time. The child is anxious when she is taken to school and cries, so her mother tries to reassure her. She still has problems with her speech, but since the mother came back into the child’s life her speech is better than it was. She is still very withdrawn and very confused.
The maternal grandmother, Ms C, swore an affidavit on 16^th February 2010. She and her husband live about an hour’s drive from the mother. She goes to see her grandson [Y] play cricket each week. She speaks to the mother daily on the telephone and to the children if they are available. The mother will bring the children to see her when they have attended football matches, because she lives near the football stadium at [omitted].

Ms C does not drink alcohol and does not believe that the mother has an alcohol problem. She had asked the father on Christmas Eve 2009 to bring [X] over to her home on Christmas Day so that she could receive her Christmas presents. However, she asked the father not to enter her house, to which he replied:
What do you mean? Guess you won’t be seeing her then?[20]
[20] Affidavit of Ms C 16.2.2010 at [10]
Ms C told the Court that she had met the mother’s friend, Mr B on two occasions. He seemed to be “a very nice fellow, a good worker”. She also said that she thought that [X]’s speech did not seem to be as bad as it was. [Z] and [Y] could understand what the child said.
The father cross-examined Mrs. C, asking her if it were true that they only used to see each other about six times a year. She said it was about once a month, except when sporting events were on, when it would be every weekend.
It is unclear what the father expected to gain from his cross-examination of Ms C, but it is unlikely that he expected that she would launch into a fierce criticism of his character and behaviour. Ms C said words to the effect of:
“You were a bit of a disappointment, [Mr Trumble]. (When) you had your accident you became a big bludger…You changed so much. To take [X] away from her mother, that’s the lowest of the low. You haven’t even been a provider for five years,

[Mr Trumble]. She[21] paid for your cigarettes, (and) your bourbon. You never helped. She paid the rent. You didn’t do anything…You can put on a good front, but you lie and you lie. You were nice for the first year or two and then you became a bludger. You have not contributed to the household in any way. The kids talk to me, too. You were too hard on [Y] and [Z]. What hurt me most was when you wouldn’t let [X] come (on Christmas Day 2009). ...If [Y] was drinking, what about yourself? You’re on the bourbon and coke all the day. She’s paid a lot for your bourbon.”
[21] i.e. the mother
Mr Anderson, asking the patently obvious, put to her that she clearly had a low opinion of the father. Ms C replied:
“I have now. I don’t think a child should be without their parents. They should have a relationship with both parents. I do think a child should have two parents. [X] has said ‘I want to go to [Z]’s school.’ I’ve observed the relationship between [X] and [Z].”
The mother also relied on an affidavit by Ms M, a lifelong friend. They speak on the telephone approximately every second day and see each other with their children about once a month. She deposed that the mother took a responsible approach to alcohol and she had never observed her to drink to excess. She never had occasion to be concerned about the welfare of the mother’s children whilst in her care.
However, Ms M deposed to having seen the father to have been drinking alcohol at 10.00 am on occasion. She also deposed that the father had said to her about his relationship with the mother:
“If we break up I’ll be taking [X]”.[22]
[22] Affidavit of Ms M 27.11.2010 at [13]
Ms M also deposed that she had seen [X] since she returned to her mother’s care in February 2010. She described the child’s relationship with the mother as close and noted that the child follows the mother and wants to know where the mother is at all times.
Ms M was not shaken in her evidence by cross-examination by the father or counsel for the Independent Children’s Lawyer.

The Father’s Evidence

The father’s evidence was contained in his affidavits of 26^th March 2010 and 26^th November 2010.
He deposed that he has been the child’s primary carer since birth.[23]
[23] Affidavit of Mr Trumble 26.3.2010 at [7]
The mother commenced employment when [X] was four weeks old and he remained at home, taking care of the needs not only of [X] but also the other two children.[24]
[24] Ibid at [8]-[9]
It is the father’s evidence that:
a)He would drive to the mother’s workplace to pick up and drop off work because she had not renewed her driver’s licence, which meant she could always have a drink;[25]
[25] Affidavit of Mr Trumble 26.3.2010 at [18]
b)From 2004 every time the mother went out she would have too much to drink and start fights;[26]
[26] Ibid at [20]
c)The mother and Mr P were banned from the bowling club for three years until about March 2009 as a result of being involved in a fight in which the mother threw a schooner glass at a man;[27]
[27] Ibid at [22]
d)He started taking a more active role in his grandmother’s care from August 2008;[28]
[28] Ibid at [30]
e)On 15^th August 2009 he and the mother had an argument about [X], where he said that he would look after the child during the week and the mother would have her on the weekend, except that he did not want the mother to drink when the child was with her or take her to places where people were drinking; [29]
[29] Ibid at [36]-[39]
f)The mother agreed not to take the child to a friend’s birthday party at the club;[30]
[30] Ibid at [40]
g)The father later went to the mother’s home, where he spoke to someone named [name omitted] and found out the mother had taken [X] to the party at the club;[31]
[31] Ibid at [43]-[44]
h)He went to the club and found the mother in a state of drunkenness, so he took the child and left;[32]
[32] Ibid at [45]
i)He rang the mother the next day to arrange to return the child but she screamed at him;[33]
j)The mother attended at his home on 19^th August and, whilst he was going to get the key to unlock the gate the mother climber over the fence and was trying to throw the child over the gate;[34]
k)He took the child and called the police;[35]
l)He described a process of mediation and negotiation where he criticised the mother for not admitting that she had a drinking problem and he offered that the mother could see the child for two hours a week under his supervision;[36]
m)The father unilaterally enrolled the child at [G] public School;[37]
n)“[X] has settled in very well at school and is doing very well with her learning, she has often brought home merit awards for good behaviour and the like”;[38]
o)He saw the mother’s car in the car park of the [B] Bowling Club at about 1.30 am on 23^rd November 2010 and is concerned that the mother had been driving with [X] in the car;[39]
p)[X] has made repeated comments that she does not like going to Mr P’s [business];[40]
q)He has heard lots of stories about the mother drinking every weekend;[41] and
r)The child should remain at [G] School as it is one of the best schools in the [S] Shire as they picked up the child’s problems straight way and she is fitting in well there, only being held back by her mother, who does not help the child with her homework.[42]
[33] Ibid at [47]
[34] Ibid at [49]
[35] Ibid
[36] Ibid at [50]
[37] Ibid at [54]
[38] Ibid at [55]
[39] Affidavit of Mr Trumble 26.11.2010 at [4]
[40] Ibid at [5]
[41] Ibid at [7]
[42] Ibid at [9]
In cross-examination, the father said that he played a major role in the care of all of the children. [Z] had done well at school because she liked school but [Y] was different.
He was not aware that there was a problem with [X] at school until the school counsellor sent him some information. He was not happy to follow the recommendations of the speech pathologist but he accepted that the child had a difficulty with her speech. He was of the view that the child’s problems were due to the fact that she had not attended pre-school before she started school.

Submissions

Due to the fact that the father was not legally represented, the Independent Children’s Lawyer’s submission was taken first, followed by that of the applicant and then that of the father.
Counsel for the Independent Children’s Lawyer had submitted a comprehensive minute of orders, as set out in paragraph [4] above. The submission is that there should be final orders rather than interim orders to be reviewed in 12 months. Essentially, the submission that the child should primarily live with the mother and spend time as specified with the father. She should attend the [B] School with her sister, as recommended in the Family Report.
There are concerns about the child’s developmental delay, as raised by Dr G, and there is a need for an assessment by Dr B and significant intervention.
Counsel for the Independent Children’s Lawyer, Mr Anderson, prepared a comprehensive Summary of Argument which includes a detailed written submission under the heading Outline of Relevant Matters, referring to a number of relevant authorities and dealing individually with the primary considerations in s.60CC(2) of the Family Law Act and the additional considerations in s.60CC(3).
I have read the document in detail and, with respect, I have found it very helpful in my deliberations
The mother seeks similar orders to the Independent Children’s lawyer, except that the amount of time with the father should be structured differently. The mother disagrees about the proposed order concerning Mr B, which she says would be inappropriate in the long term. I am inclined to agree on that point,
Counsel for the mother submitted that [B] School would be the most appropriate choice, but advocated waiting to make a decision about whether the child should repeat kindergarten at that school until the assessment from Dr B was available. [X]’s relationship with her siblings is important and [Z] attends [B] School, which Dr G saw as an advantage.
As to the mother’s abuse of alcohol, there was no credible evidence apart from the father’s allegations.
The [business] of Mr P was agreed to be an unsuitable place for the child to attend.
Counsel for the mother, Mrs Conte-Mills, had prepared a comprehensive Outline of Case which set out a detailed Summary of Argument dealing with all the individual considerations in s.60CC(2) and s.60CC(3) to enable the Court to determine what is in the child’s best interests.
Again, I found this document very helpful and read it through thoroughly.
The father’s submission was that, despite the recommendations in the Family Report, the current situation should continue. He opposed the idea of the child repeating kindergarten, saying that he had not found any wording of any type that said it would be advantageous for [X] to be kept back in kindergarten for another year.
If the child were to move school and go to [B], she would be going to a school where she only knew her sister, but she has friends at [G]. He was prepared to look at other schools in the Shire, anywhere but [B]. He does not like the school at [B].

The Applicable Law

The Full Court of the Family Court of Australia has set out in Starr & Duggan[43] that a logical approach to the consideration of the relevant sections of the Family Law Act involves:
a)making findings about the relevant s.60CC factors;
b)considering whether equal or substantial and significant time is in the child’s best interests;
c)considering whether such arrangements are reasonably practicable.
[43] [2009] FamCAFC 115
I have followed that sequence in determining this matter.
The child’s best interests are the paramount consideration. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is repeated in s.65AA of the Act.
In order to determine what is in the child’s best interests, the Court must consider:
a)The primary considerations set out in s.60CC(2) of the Act;
b)The additional considerations set out in s.60CC(3);
c)The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60CC(4)); and
d)Where the child’s parents have separated, events that have happened and circumstances that have existed since the separation occurred (s.60CC(4A)).
I have done so in this case.
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 (s.61DA(1)).
There is no issue between the parties that the parents should have equal shared parental responsibility. They all seek an order to that effect. It was also a recommendation in the Family Report that the parents should have equal shared parental responsibility. I propose to make that order.
Section 65DAA requires the Court to consider, where a parenting order provides that a child’s parents are to have equal shared parental responsibility, whether:
a)The child spending equal time with each of the parents would be in the best interests of the child; and
b)Whether the child spending equal time with each of the parents is reasonably practicable.
If the Court finds that spending equal time with each of the parents is in the child’s best interests and is reasonably practicable, the Court should then consider making an order to provide, or including a provision in the order, for the child to spend equal time with each of the parents (s.65DAA(1)(c)).
If the Court does not make an order to that effect, it must consider whether making an order that the child should spend substantial and significant and significant time with each parent would be in the child’s best interests and not reasonably impracticable (see Goode & Goode[44]).
[44] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
I am not satisfied that it is in the child’s best interests to spend equal time with each of the parents, even if it were reasonably practicable. I have considered whether to make an order that the child should spend substantial and significant time with each parent.

Conclusions

This is a case about a five year old girl who has significant developmental delay, including language difficulty. It is surprising that neither parent took steps to deal with that issue until the matter was raised by teachers and the school counsellor at the child’s school. The father took the child out of the mother’s care because he claimed that she had an alcohol abuse problem and did not take steps for the child to spend any time with the mother or her half-siblings at all for a period of four months, from August to December 2009, and then for only three short periods of two hours or less between December 2009 and February 2010.
This high-handed action by the father does not appear to have been at all in the child’s best interests. There is evidence that she has suffered a form of separation anxiety by being away from her mother for a substantial period of time. It also appears that the child’s prolonged absence from the mother did not assist her developmental delay, even if it did not exacerbate it.
The primary considerations are set out in s.60CC(2), being the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The child has been assessed as having a strong attachment to her mother[45]. Although I am of the view that it will be better for her to spend more time with her mother, I am satisfied that it is in [X]’s best interests to have a meaningful relationship with both her father and her mother.
[45] Family Report at [67]
The father took the child from the mother’s care because of his stated concern about the mother’s abuse of alcohol, which would lead to the risk of harm from neglect, at least. However, the father’s only evidence of this abuse of alcohol comes from the father himself, and it is denied by the mother and her witnesses. The father has a drink-driving conviction. The mother has no convictions for alcohol-related offences.
The father’s actions in keeping the child with little or no contact with the mother, even though with the intention to protect the child from physical harm, seems to have led to psychological harm, due to the lengthy separation of the child from the mother.
Whilst there were allegations by the mother that the father had been abusive and intimidating, and on one occasion violent towards [Y], these events occurred when the parties were living together. They no longer live together and seldom see each other, so this does not appear to be an issue any longer.
The additional considerations are set out in s.60CC(3). They include any views expressed by the child and any factors, such as the child’s maturity and understanding, that are relevant to the weight to be given to those views (s.60CC(3)(a)).
Dr G reported that it was not possible to get [X] to state any preference about whom she wanted to live with or where she would like to go to school. She expressed positive views about both parents. She also stated that she liked playing with [Y] and [Z].[46]
[46] Family Report at [43]
The child was five years and seven months old when interviewed by

Dr G. Her views will be given some weight, but her young age and the limited amount of information she was able to give mean that the weight to be given to her views will be limited.
Under s.60CC(3)(b), the Court must consider the nature of the child’s relationship with each parent and with other persons, including grandparents and other relatives.
As the Independent Children’s Lawyer has pointed out, neither parent has adequately addressed the child’s significant developmental delays. There is evidence that she has experienced separation anxiety as a result of the separation from her mother over that period of time. The Family Consultant noted that [X] was “very excited to be reunited with her mother after spending the previous five days with her father. She jumped up and down with happiness and excitement at seeing her mother”.[47]
[47] Ibid at [45]
It is clear that [X] has a close relationship with her half-siblings, especially [Z]. Her relationship with them would be strengthened if she were to spend more time living in the same household.
The child spent time living with the father in the home of his grandmother, the child’s great-grandmother. Sadly, that lady is recently deceased.
The maternal grandmother, Ms C, gave evidence that she and her husband have a close relationship with [X] and the other two children. She gave evidence that the father had not let the child attend at her home on Christmas Day to collect her Christmas presents.
The Court must consider 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 (s.60CC(3)(c)). Here, the father took the child from the mother’s care and did not allow her to see her mother at all from mid-August to mid-December, and then for only three occasions between December 2009 and February 2010, for periods of up to two hours. Whilst the father in his affidavit of 26^th March 2010 attempts to blame the mother for not seeing the child, but it is clear that all he intended to allow was for two hours a week under his direct supervision.[48]
[48] Affidavit of Mr Trumble 26.3.2010 at [50]
The father showed little willingness or ability to facilitate the relationship between the child and the mother.
The Court must also consider likely effect of any changes in the child’s circumstances, including the separation from either parent or any other child or other person with whom he or she has been living (s.60CC(3)(d)). In this case, the father had removed the child from the mother and effectively prevented from spending any time with her mother for several months, and then only in December allowing time for up to two hours at a McDonald’s under his supervision. It is apparent that the child has developed a separation anxiety as result of the father’s action.
It would therefore be in the best interests of this child to spend significantly more time with the mother and with her siblings. The Independent Children’s Lawyer has noted that the mother has been socially isolated whilst in her father’s care. She was separated from her siblings, and it appears that she has a close relationship with her sister, [Z]. The Family Report recommends that the child should change her school so that she can attend [B] School with her sister. The recommendation also is that the child spends every alternate weekend and two nights in the other week with her father during the school term, with the rest of the time being spent in her mother’s household.

This would have a significant effect on the child, allowing her more interaction with her mother and siblings, which should assist in reducing her separation anxiety.
There is no practical difficulty and relatively little expense involved in [X] spending time with and communicating with either of her parents.[49] The mother lives at [B] and the father lives at [G], which are nearby suburbs.
[49] See s.60CC(3)(e)
The Family Consultant did not have confidence that either parent had adequate parenting capacity. The Court must consider the capacity of each parent to provide for the child’s needs, including emotional and intellectual needs (s.60CC (3)(f)).
The mother was described as being unable to manage her son [Y] in a way that supported his learning needs. [Y] is having serious difficulties at school, according to the records of [C] School.[50]
[50] Family Report at [64]
However, the father’s ability to cater for [X]’s emotional and intellectual needs is demonstrably lacking. His actions in removing the child from her mother and allowing very little time between them demonstrates a lack of understanding of the child’s emotional needs. The child did not see her mother at all from August to December, and from then until February the child saw her mother on only three occasions, for a limited time of two hours or less. The child did not see her maternal grandmother on Christmas Day 2010, because the father would not take her, after being told that he was not to enter the grandmother’s house. This appears to be an example of the father putting his own displeasure at the grandmother’s statement before the child’s needs.
The father’s ability to provide for the child’s intellectual needs has also been found wanting. He did not enrol the child in pre-school, notwithstanding the fact that he claimed to be the child’s primary carer. He blamed the mother for this omission. Here was a child with developmental delay who did not attend pre-school and was enrolled at [G] School by the unilateral act of the father.
It was apparent to the teachers that the child had development issues from the time she was first enrolled at the school and was not ready for school.[51] Both parents were told many times that the child needed to consult a speech therapist and an occupational therapist, but nothing was done.[52]
[51] Family Report at [48]
[52] Ibid at [49]
Despite all this, the father deposed in his affidavit of 26^th March 2010 that “[X] has settled in very well at school and is doing very well with her learning…”.[53] This clearly was not the case. The child appears to have struggled the whole time, yet the father had only the vaguest idea that there might be any be any difficulty with her development. All he could see was that she had some difficulty with her speech. He blamed the child’s mother for holding her back.
[53] Affidavit of Mr Trumble 26.3.2010 at [55]
I am not satisfied that the child’s developmental and educational needs, or her speech difficulties, will be at all alleviated if she remains in the care of the father.
The Court needs to consider the child’s maturity, sex, lifestyle and background and any other relevant characteristics (s.60CC(3)(g)). [X] is a little girl aged five whose development and speech are significantly delayed. She needs considerable remediable attention.
Subsection 60CC(3)(h) does not apply to this child.
The Court must consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents (s.60CC(3)(i)).
The father took the child from the care of the mother for six months and made very little effort to allow the child to spend any significant time with her mother or her sister. He unilaterally enrolled the child at the [G] School, notwithstanding the fact that the child’s siblings had attended, and [Z] still attends, the [B] School. He did not consult or inform the mother about the child’s schooling. He appears to lack an understanding of the child’s needs.
The Court must consider any family violence involving the child or a member of the child’s father and whether any family violence applies (s.60CC(3)(j) and (k)).
There is no family violence order in place. There have been allegations by the mother that the father was on one occasion violent towards [Y], and that his behaviour was abusive and intimidating. His relationship with his former wife involved an assault on her.
One consideration is 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 (s.60CC(3)(l)). Dr G suggested that this is a case where a review in a year’s time may be useful, with the Independent Children’s Lawyer being retained.
I am not disposed to take that action. There needs to be an end to litigation. I consider that the Independent Children’s Lawyer should remain involved in the matter until the commencement of the school year, because there needs to be a number of steps taken by way of obtaining an assessment from Dr B and a paediatric assessment.
However, it is better to make final orders to bring the litigation to an end. If an issue arises in the future that warrants further litigation, then a fresh application can be made.
Again, the Court is required to consider any other fact or circumstances that the Courts thinks is relevant (s.60CC(3)(m)).
The father has raised the issue of the mother’s abuse of alcohol, in fact, he claims it was the primary reason why he chose to take [X] from her mother’s care and not return her. However, he provided no corroborating evidence in support of his claim, which was strenuously denied by the mother and her witnesses.
It may be that the mother presented an overly rosy account to the Court, but the onus was on the father to establish his claim that the mother had a serious alcohol abuse problem. He did not succeed in this regard.
The Court needs to consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibility as a parent (see s.60CC(4)).
Both parents appear to have seriously underestimated the extent of the child’s developmental delay, including her speech problems, and to have taken action to remedy those problems. The child’s delay was evident to the staff at [G] School when she commenced the school year.
The failure to send the child to pre-school is a failing by both parents, and the father cannot just blame the mother for this. Had [X] attended pre-school for a year, it is likely that her developmental and speech delay would have been reported by the pre-school staff and steps could have been taken to send the child to a speech therapist. Again, a year at pre-school would most likely have helped prepare the child to start school the following year.
The father’s unilateral decision to enrol the child at [G] School without consulting the mother meant that he effectively failed to facilitate the mother’s participation in making a decision about a major long-term issue in relation to the child. Commencement of school is major landmark in a child’s life, the mother was effectively excluded from it.
The father’s actions in allowing the mother so little time with the child, less than a total of five hours between August 2009 and February 2010, effectively cut the mother out of spending time with or communicating with the child in any meaningful way.
The Court must have regard to events that have happened and circumstances that have existed since the child’s parents separated (s.60CC(4A)).
Clearly, the major circumstance was the father’s precipitate action in taking the child from the mother’s care and effectively denying her any meaningful time with her mother or siblings. This indicates a lack of understanding of the child’s needs and appears to have been psychologically damaging to the child.
The orders proposed by the Independent Children’s Lawyer by and large meet the child’s best interests. However, I am disposed to make an order that the father spends more time with the child than the Independent Children’s Lawyer has submitted. The Independent Children’s Lawyer proposes that [X] spend time during the school term with the father:
a)From after school on Friday till the commencement of school on Tuesday in the first week of the fortnight, a total of four nights; and
b)From after school on Tuesday to the commencement of school on Wednesday in the second week, being one night only.
The Family Report recommends every second weekend (Friday afternoon to Monday morning), a total of three nights, and two consecutive nights in the alternate week.
Each proposal provides for five nights each fortnight with the father. I am more inclined to favour an order providing for six nights with the father, being four nights in the first week of the fortnight and two nights in the second week. My reasons for that decision are that this would give the father a good spread of weekend time and school time with the child, so that he can be responsible for a substantial part of the child’s homework and play a meaningful role in the child’s schooling.
The mother would have the other eight nights with the child, encompassing both weekend time and school time. She, too, will be required to play a meaningful role in the child’s schooling. There is also weekend time for leisure activities with the child. She will also have significantly more time with her siblings than she has had before.
There appears to be some agreement that the child will not be left in the care of Mr P, the father of [Z] and [Y]. That seems to be a suitable arrangement, but I consider that the order should go further. Mr P’s [business] does not seem to be a suitable environment for a little girl and I propose to make an order that she not be permitted to enter that establishment.
The mother’s counsel has submitted that the proposed order concerning the mother’s friend Mr B would be restrictive and not appropriate. I am inclined to agree, and I do not see that the child’s best interests would be advantaged by the making of such an order.
The final orders are intended to assist the child by dealing with her educational and developmental deficits, which must be a priority for the child’s parents.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 10 January 2011