Coakes and Arden

FEDERAL CIRCUIT COURT OF AUSTRALIA

COAKES & ARDEN

[2018] FCCA 923

Catchwords:
FAMILY LAW – Parenting – final orders – one child aged 3 – primary attachment to the father – mother has difficulty being consistently emotionally available for the child – mother addressing issues through services and counselling – best interest of the child.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Goode & Goode [2006] FamCA 1346
McCall & Clarke [2009] FamCAFC 92
MRR v GR [2010] HCA 4

Applicant:

MS COAKES

Respondent:

MR ARDEN

File Number:

NCC 1496 of 2017

Judgment of:

Judge Middleton

Hearing dates:

1 & 2 March 2018

Date of Last Submission:

2 March 2018

Delivered at:

Newcastle

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Ms Ticehurst

Solicitors for the Applicant:

Baker Love Lawyers

Counsel for the Respondent:

Mr Brady

Solicitors for the Respondent:

Renfrew Solicitors

ORDERS

The Father and Mother have equal shared parental responsibility for the child [X] born 2014 (“the child”).
Each party have responsibility for the making of decisions concerning the day to day care, welfare and development of the child whilst the child is in their care.
The child live with the Father and spend time with the Mother as agreed in writing (and writing is to include by way of letter, email and text) and failing agreement as follows:
(a)Each alternate weekend from the conclusion of day care/school on Friday until return to day care at 9.00am Monday.
(b)Until the child commences school each alternate Tuesday from the conclusion of day care/school until 5.00pm on Wednesday.
(c)When the child commences school each alternate weekend (in accordance with 3(a)) and each alternate Tuesday from the conclusion of school until the commencement of school on Wednesday.
(d)On the child commencing school in 2020, the child will spend time with the Mother in the New South Wales School Holiday period/s between Terms 1, 2, 3 and 4 for one half of such periods:
(i)The first half in even years and alternating; and
(ii)The second half in odd years and alternating.
The orders in Order 3 will be suspended as follows to allow the child to spend special occasions with the parties:
(a)On the weekend of Mother’s Day the child shall spend time with the Mother from 4.00pm on the Saturday prior to Mother’s Day until 4.00pm on Mother’s Day.
(b)On the weekend of Father’s Day the child shall spend time with the Father from 4.00pm on the Saturday prior to Father’s Day until 4.00pm on Father’s Day.
(c)On the child’s birthday the child shall spend time with the party not otherwise having the care of him, from after day care/school or 4.00pm on a non- day care/school day until 7.00pm
(d)On the Mother’s birthday the child shall spend time with the Mother from after day care or school or 4.00pm on the non- day care/school days until 7.00pm.
(e)On the Father’s birthday the child shall spend time with the Father from after day care or school or 4.00pm on the non- day care/school days until 7.00pm.
(f)On 1 May 2018 each year the child shall spend time with the Mother from after day care/school or 4.00pm on a non-day care/ school day until 7.00pm.
(g)During the Christmas period in 2018 and in each alternate year thereafter the child shall spend time with the Mother from 4.00pm Christmas Eve until 4.00pm Christmas Day.
The child shall have telephone communication with the Mother as follows:
(a)The Mother shall place the call to the Father’s mobile telephone number between 7.00pm and 7.30pm on Thursdays, or as otherwise agreed between the parties in writing from time to time;
(b)The Father shall ensure his mobile telephone is switched on, charged, able to receive incoming calls, and [X] is available to communicate with the Mother.
For the purpose of changeover the venue is to be by agreement between the parties and failing agreement as follows:
(a)At the child’s day are/school where relevant
(b)At all other times as follows:
(i)At the conclusion of the child’s time with the Mother at McDonalds Family Restaurant.
(ii)At the conclusion of the child’s time with the Mother on Wednesday at McDonalds Family Restaurant.
(iii)For the purpose of collection and return, the Mother and the Father will endeavour to be present but if it be the case that such a party is unable to attend then that party’s nominee known to the child is to facilitate the changeover.
(iv)When the child attains school age changeover, where possible is to occur at the child’s school in accordance with the school time/s for the child’s school day in regard to that school’s commencement and conclusion times.
Each party shall keep the other informed of the child’s treating medical professionals and authorise such treating medical professionals to provide both parties with information regarding the child’s health and medical treatment.
Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by the child.
In the event that the child requires hospitalisation whilst in the care of either party that party shall, as soon as practicable, notify the other party of the child’s hospitalisation.
Each party is authorised by these orders to attend the child’s day care/school for the purpose of any parent teacher interview, event, function or the like involving the child.
Each party is authorised by these orders to attend the child’s day care/school for the purpose of obtaining school reports and photographs and other information involving the child.
Each party shall keep the other party advised at all times of their residential address and residential telephone number and emergency contact number and notify the other party within seven days of any change in their information.
The parties are restrained from criticising or making derogatory statement about the other parent, their partner or their family in the presence or hearing of the child or permitting others to do so.
The child spend a minimum of three occasions each year until the child attends school in 2020 with his Mother, for a period of at least seven (7) days as agreed between the parents.
Each party shall be permitted to travel internationally with the child provided:
(a)Such travel does not interfere with the child being with the other party pursuant to these Orders;
(b)If it does interfere, such travel has been agreed between the parties in writing (may be by way of letter, email or SMS text message);
(c)The travelling party must provide no less than 60 days’ notice to the non-travelling party, with such notice to include:
(i)All available flight information, including the name of the air carrier and departure and arrival times; and
(ii)The name and contact information for all accommodation.
(d)Upon provision of the notice pursuant to the above order, if the Mother is the travelling party, then the Father shall hand over to the Mother the child’s passport within seven (7) days of receipt of the said notice.
Within fourteen (14) days the parties shall do all acts and things necessary so as to cause an Australian passport to issue for the child and ensure the said passport is renewed prior to its expiry.
If the Mother fails to comply with the above order, then the consent of the Mother to the issuing or renewal of an Australia passport for the child is hereby dispensed with.
Subject to Order 17 and subject to any other requirements of the Department of Foreign Affairs and Trade (or such other Australian Government Department or Agency which issues or has the power to issue Passports), the said Department issue or renew the passport to and for the child notwithstanding that the consent of the Mother has not been obtained.
The passport is to remain in the possession of the Father and is to be provided to Mother upon compliance with Order 15 herein.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1496 of 2017

MS COAKES

Applicant

And

MR ARDEN

Respondent

REASONS FOR JUDGMENT

Ex tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

The mother, Ms Coakes aged 22, commenced proceedings in May of 2017. The father, Mr Arden, is aged 23.
The proceedings relate to parenting matters concerning a child, [X] born 2014, now aged three years and four months.
The parents met in high school. They were in an intimate relationship between 2009 and 2014. They have never lived together. The mother was also in an intimate relationship with another man towards the end of this couple’s relationship. As a result, there was some confusion as to who the child’s father was for the first seven to eight months of his life.
Immediately upon establishing that Mr Arden was the father, the mother arranged for the child to spend time with him, including overnight time, within the first month.
At the time of the trial, the father has re-partnered with Mr R. They have been in a relationship since mid-2015, having met in early 2015.
The mother at the time of the trial is in a relationship with Mr D and sees him, on her evidence, approximately twice a week.
It is not in contest that the mother has relied heavily upon the father and his family to assist her with the care of [X] since their involvement. It is also not in contest that the mother struggled to form an attachment with the child and provide emotional stability for him.
The mother has received assistance from (Counselling Service) and some counselling after meeting with the Family Consultant in July of 2017. In July, both parents identified that their primary concern for [X] was the mother’s capacity to be consistent and emotionally available in her parenting of [X]. Both parents described a very close and secure attachment to the father.
At the time of meeting the same Family Consultant in October of 2017, both parents agreed that the mother had been less reliant upon the father and his family and that the relationship between her and the child had been improving.
It is in that context that the matter was listed for trial.

Material relied upon

The mother relied upon her:
(a)Further Amended Application dated 23 February 2018;
(b)Affidavit of 23 February 2018;
(c)Case outline.
The father relied upon his:
(a)Amended Response filed 4 August 2017;
(b)Affidavit filed 24 February 2018;
(c)Case outline.
At the outset of the trial the father also relied upon an Affidavit of Mr R. With regards to Mr R, it became apparent after the mother had given her evidence and had been cross-examined that Mr R had been present in Court throughout that entire time. She subsequently left the Court.
This morning, counsel for the father informed the Court that he was no longer relying upon the Affidavit of Mr R. The counsel for the applicant conceded that it was appropriate for me to remove that Affidavit from my reading list and to otherwise disregard it, and I have done so, save for and to the extent of the matters that were raised from that Affidavit in cross-examination of the parties.
The parties also relied upon the Child Dispute Memorandum dated 12 July 2017 and the Limited Issues Report dated 19 October 2017. Ms B authored both of these documents.

The orders sought

The mother seeks orders as set out in her Further Amended Initiating Application. The mother proposes that the child live with her and spend time with the father gradually increasing to an equal time arrangement by 2 November 2019 and she seeks further ancillary orders relating to special time, Christmas and the like.
The father proposes that the child live with him and spend time with the mother each alternate weekend from conclusion of school and day care Friday until 5.00pm Sunday and in the off-week from after school or day care on Tuesday until 5.00pm Wednesday until the child commences school and thereafter from after school Tuesday until return to school Wednesday. The father also seeks further ancillary orders as set out in his minute of orders sought attached to the case outline.
Both parties seek an order for equal shared parental responsibility.

The legislative pathway

This is a parenting application, and as such, Part VII of the Family Law Act applies; guided by the principle and objects contained within section 60B and noting that it is the child’s best interests that is my paramount concern.
I must make orders after considering all of the matters in section 60CC(2) and (3) that are in the child’s best interests.
Both parents seek an order, as I said, for equal shared parental responsibility. If I make such an order, the provisions of section 65DAA are triggered.
In MRR & GR[1], the High Court mandated that I must consider and make findings in relation to both inquiries within the section.
[1] [2010] HCA 4.
I must, of course, follow the legislative pathway as the Full Court said in Goode & Goode.[2]

The evidence

[2] [2006] FamCA 1346.

The mother

Turning to the evidence, the mother gave evidence that she had a significant traumatic event occur when she was 16 years old involving her father. She acknowledges that she is still working with a counsellor in relation to this issue together with seeking advice with regards to her parenting.
The mother says she felt pressured by the father and paternal family to allow [X] to spend a lot of time with them.
It is not in dispute that the mother has facilitated more time with the father than is required pursuant to the orders I made in May of 2017. The mother’s counsel submits that she should not be criticised for this because the arrangements were by consent, the mother felt pressured, and allowing extra time is child focused, and I accept all of those things.
The mother acknowledges that she had difficulty being consistently emotionally available for the child and that she has sought assistance and continues to seek assistance in this regard.
The mother also acknowledged that she has unresolved issues surrounding the traumatic events concerning her father. The mother said she wanted to live with her partner on the Region A until “last week.”
Her position changed because her partner lives with his parents and they do not want a toddler in the home, and her partner is now building his own home, and, on her evidence, it could be two to three years before that is completed.
The mother acknowledged a problematic history with her mother and stated that the relationship was good now and that she gets good support from her, and it is noted that the maternal grandmother has been in Court throughout the proceedings.
The mother initially said that there was a risk in the father’s home. When asked under cross-examination what the risks were, the mother referred to the child’s difficulty with pain in the penis.
It is a fact that the parents have taken [X] to the doctor with concerns and that the doctors have indicated that the child had an infection and possibly his foreskin is causing a restriction. The mother ultimately conceded, however, that there are no risks in the father’s home.
It is the mother’s evidence that since October of 2017 there have been fewer occasions when the child has spent time with his father in excess of Court ordered time, and that appears to be the case.
The mother concedes that the child still punches and cries at changeover, says this occurs less and puts it down to three year old tantrums.
The mother also acknowledged that the child asks to see his father and speak to him from time to time when he is in her care. The mother said she contacts the father and at times allows [X] to see him for the child’s comfort, not for her support.
The mother acknowledged that there has been instability and lack of routine until October 2017 in terms of the living arrangements, and in the four months since October, there has been less instability.

The father

The father gives a lot of evidence about the additional days he has spent with the child throughout these proceedings until the filing of his affidavit. He says, and I accept that, the child is very attached to him and that he is the parent who the child seeks out. He is the parent that can calm the child at changeovers. Those things are not in contest between the parties.
The father acknowledges that he has cried at changeover and that this might have an effect on the child. The father acknowledges that he works between 6.00am and 6.30am until 3.00pm to 3.30pm, although sometimes finishes earlier.
His proposal involves day care, his partner and his mother caring for the child when he is unavailable. There is no evidence that could satisfy me that those arrangements pose a risk to the child. Many parents work, and many children are placed in day care and have external family members and other paid carers caring for them.
The father conceded that there has been an improvement in the child and mother’s relationship but also said that the child cries and clings to him at changeover. The father is hopeful that the services assisting the mother will promote further improvements in the mother and child’s relationship.
The father also said that the mother has facilitated time between the child and himself often and that the mother tries to please everyone.
The father acknowledged that when the mother calls him for help with the child, it is a good thing and that at the time he withheld the child, he could have handled things better. Furthermore, the father acknowledged that neither he nor the mother knew what was appropriate at the time and acknowledged that both parents are young and doing the best they can, and I accept that.
The father acknowledged that he has discussed his worries about the mother with the child and that he tells the child that he is safe with him.
The father ultimately conceded that holiday time should be shared and gave some evidence that he would be flexible in arrangements for the child.

Conclusions

My conclusions after hearing from the mother and father are these.
I form the view that they were both young - and that is a fact - and that as a result, they have both displayed at times a lack of insight into the needs of the child.
I also form the view based upon both parents’ evidence that [X] has a stronger emotional attachment to his father and that he seeks out his father for comfort and security.

The family consultant

The Family Consultant gave evidence in the form of the two memorandum and report that I have referred to previously.
She was also cross-examined. The Family Consultant first met the parents on 12 July 2017. At that time, it is agreed between the parents that they told the Family Consultant that they believed it was in [X]’s best interests to live predominately with the father.
The Family Consultant recognised that one consideration was whether it was in the child’s best interests for an equal time order. The Family Consultant stated that the mother told her that she described disassociating from the child and acknowledged that she might have some underlying, unidentified mental health issues she might need to address in order to improve her parenting capacity and inability to bond consistently with the child.
The Family Consultant says that both parents described insecurity in the child’s attachment with the mother and identified high levels of emotional and psychological distress in the child at times when he is with her and very high levels of emotional and behavioural distress when returning to the mother after spending time with the father. Both parents agreed in evidence that this was, indeed, the case.

The Family Consultant noted that both parents spoke respectfully of one another, something that I am satisfied has occurred and the parties should be congratulated for.
The Family Consultant recommended that the child spend six days a fortnight with his father but that a Limited Issues Report be ordered to consider whether equal time is in the child’s best interests.
The parties attended upon the same Family Consultant on 11 October 2017, and the Family Consultant prepared her report dated 19 October 2017.
At paragraph 17 of that report, the Family Consultant notes that the mother disputes that she is unable to consistently care for the child and explained that she offers her child to the father because the child asks to be with the father and because she is showing kindness to the father by offering more time. This explanation was entirely consistent with the mother’s evidence at trial.
At the time of the interview, the Family Consultant says both parents believe the child is safe in the care of the other parent. Again, this is consistent with the parent’s evidence at trial with the exception that the mother raised the issue of the child’s penis infections. I should point out that I am not satisfied that the child’s penis infection is as a result of any risk in either of the parents’ home.
At paragraph 43, the Family Consultant gave evidence – and I accept her evidence – that the mother maintained the view that the father has been the child’s most consistent, secure attachment until up to the date of the interviews.
The mother’s concern was that the child may endure multiple changes to his carers in the father’s home, and again, that was her concern at trial.
At paragraph 73, the Family Consultant points out that the child has a psychological reliance on the father even in circumstances where the relationship between he and the mother has improved and the relationship between the mother and the child has improved.
At paragraph 78, the Family Consultant gives evidence that she had some remaining concerns about whether the mother’s capacity to be emotionally stable and available for the child could be consistent and sustained over consecutive prolonged periods.
The Family Consultant noted that the child still spends more time with his father in circumstances where the child seeks it and because the mother has empathy for the father.
The Family Consultant gives an opinion that this represents a lack of insight on the mother’s behalf about the impact on the child, at his very young age, of a lack of routine, stability and predictability in his family life.
I accept that evidence and find, as I said earlier, that the mother has some limited insight into the needs of the child, but I also accept that the mother is doing the very best that she can in the circumstances.
Indeed, at paragraph 81 of the Family Consultant’s report, the Family Consultant says this:
“If the mother facilitates greater time for [X] with the father because she has difficulty coping with the primary caregiver role, then she is to be commended for placing [X]’s needs over her own.”
I agree. She goes on:
“Such a quality would inspire a great deal of optimism about the kind of parent the mother will be during and after her process of working through her own very complex emotional issues towards improving her parenting for [X].”
I also agree. However, such circumstances may consolidate the fact that it is not in [X]’s best interests to maintain a primary living arrangement with the mother at this time, notwithstanding that [X] should maintain substantial and regular time with her in an age-appropriate arrangement.
At paragraph 86, the Family Consultant opines that the father’s proposal would afford the child to continue access to his primary secure attachment, which in her view is integral to his positive psychological development.
Ultimately, the Family Consultant recommended that the child live with the father and spend time with the mother, in the main, in accordance with the father’s proposal.
After hearing the Family Consultant give evidence, I am satisfied that the father is the child’s primary attachment and that the child’s psychological development is best served by spending substantial time with him.
At paragraph 84, the Family Consultant provides evidence that undertaking an equal-time arrangement is contraindicated, noting that research highlights the potential adverse impacts on a child of [X]’s very young age experiencing shared care.
I accept that evidence and note that this child may benefit from such an arrangement in the future, provided the parents continue to effectively communicate and the mother continues to seek assistance.
By way of submissions, on behalf of the father it was submitted that the risk in this case relates to the development and emotional wellbeing of [X] and that there is a risk that it cannot be met in the mother’s home. I do not agree that it is a risk.
What I would say, rather, is that it is the predominant issue, that is, where are [X]’s emotional and developmental needs best met? There was no evidence from Mr D but having said that, there is no suggestion from any party that he poses a risk to the child.
It was submitted that there is some evidence to support a finding that the mother still has no real clear direction in her life. I accept that the mother is a very young person forced, if you were, to be a mother at such a young age with some difficulties in her relationship with others and some ongoing issues relating to a traumatic event in her life, and I accept that she is still finding her way.
It was submitted that the mother had an unusual response to an intruder in her home. I find, though, that the mother acted responsibly by removing the child from the home and that her decision not to otherwise report the intruder, in circumstances where he was a known person to a flatmate, was reasonable.
It was submitted that the mother preferred to call upon the paternal family rather than the maternal family, and that is so, and I find that as a fact, but I also find as a fact that the mother was doing what she could, in a child-focused way, at a time when she was having difficulty regulating her emotions.
It was submitted that there was no real evidence that the assistance the mother is getting is helping. I do not accept that submission.
There is evidence from both parents that the child’s relationship with the mother is improving. There is evidence from both parents that the mother is able to keep [X] in her care in a more routine way. There is evidence that [X]’s outbursts at changeover are reducing. They are “still not good”, to quote the father, but reducing. That is all evidence that assists me in finding that the assistance the mother is getting is helping this child.
It was submitted that it is unacceptable that the mother is unable to meet the child’s psychological wellbeing. In relation to that submission, I say this. There is no evidence that could establish that the mother is unable to meet the child’s emotional wellbeing. What the evidence establishes, in my view, is that the child’s psychological and emotional wellbeing is best met by the father at this stage.
That is due to the child’s very young age and what has occurred in the child’s life in the very early stages of his development. There is nothing to suggest that in the fullness of time, the child’s psychological needs cannot be met by both parents.
The evidence establishes that both parents have a strong desire to provide for the child, and the evidence establishes that the mother is doing all that she possibly can to increase the emotional connection with the child.
On behalf of the mother, it was submitted that a lot has changed since July and that is true. The main changes since July relate, in real terms, to the mother obtaining some assistance, having acknowledged, perhaps with the assistance of the Family Consultant after the first meeting, that there was some lack in her parenting capacity.
Since July and over a period of time since approximately late August, the child has stayed more routinely in the mother’s care, and that is a change.
It was submitted that this case is about lack of routine and instability in the care of the child. I do not accept that that is what this case is about. This case is about a lack of emotional connectivity with one parent as against the very strong attachment emotionally with the other.
It was submitted that the mother was trying to keep everyone happy, and I accept that. The mother is and has been trying to keep everyone happy. What I say about that is this: By doing so, it shows a lack of insight and has caused some instability in the mother’s emotional connection with the child, and it has also allowed the father to provide stability in being consistently emotionally available.
I accept that there has been some improvement in [X] in terms of the changeover meltdowns, for want of a better word, but there is still an issue around that.
In relation to the submission that the mother has moved on and is able to now routinely keep [X] in her care, there was no evidence to support a finding that this has improved the emotional availability of the mother.
Children of this age, so the research shows, lean towards a particular parent in terms of emotional security because of the connection they have with the parent. It is not dependent upon the number of days they spend with the parent. It is dependent upon whether the parent is emotionally available, and it is that very issue that the Family Consultant highlighted, and it is that very issue that determines this matter.
As I said, I accept that the mother has been learning a good deal of skills from her reaching out to and engaging with the Counselling service and from counselling.
It was submitted that as against the two parties, moving forward, the mother is available more often to care for the child, and I can find that as a fact. The father works. The mother does not work. However, the evidence establishes that the child leans towards the father for his emotional wellbeing and psychological advancement.

The law

The primary considerations

Section 60CC(2)(a)

Turning to the legislation, I am satisfied that this child will benefit from a meaningful relationship with both parents.
The orders I have made adopt the prospective approach as outlined in McCall & Clarke[3] and I am not bound by either party’s proposal, provided the parties are afforded procedural fairness.
[3] [2009] FamCAFC 92.
The way the evidence fell during the trial, I can find that both parents are flexible in the orders that they seek, and in those circumstances, I am of the view that they have been afforded procedural fairness having regard to the changes in orders that I might make in relation to both proposals.

Section 60CC(2)(b)

I am not satisfied that there is a risk of harm in either parent’s home that requires protection from either parent for this child.

Additional considerations

Section 60CC(3)(b)

Turning to the section 60CC(3) matters that are relevant, I am satisfied that the father is the primary attachment of this child. I am further satisfied that the child’s relationship with and attachment to the mother is improving and that this will continue to improve over time, provided the mother maintains accessing assistance.
I am further satisfied that the child would have a good relationship with external family members on the father’s side, together with his partner, who has had substantial involvement in [X]’s life.
I am satisfied that the child would have a relationship with maternal family members, noting, of course, the fact that the maternal grandmother and the mother have had a strained relationship, which is said to be improving, and I accept that, and the fact that the mother’s partner has had a limited role in the child’s life.

Section 60CC(3)(c)

Both parents have been fully involved in the child’s life and have done the best they can to co-parent. This has assisted the child greatly, and the parents should not forget that.

Section 60CC(3)(d)

If I make orders consistent with the father’s proposal, this will bring about a change in circumstances. The child will begin living with his father predominantly, and this will require considerable assistance with care before and after day care and school and, potentially, a change in day care in circumstances where [X] has been doing well at his current day care centre.
The advantage would be that he would live with his primary attachment, something I accept would be best for his psychological development. When weighing up the advantages and disadvantages, I am satisfied that the advantage outweighs the disadvantages such that a change as proposed by the father is the most advantageous change for the child.

Section 60CC(3)(e)

The evidence establishes that the parties live in close proximity currently, approximately 30 minutes away from each other. The mother gave evidence that she would live with Mr D if the child does not live with her. That is entirely appropriate in the circumstances. He lives on the Region A near Town 1. If such a move were to occur it would not provide a practical difficulty and expense that would substantially affect the child’s right to maintain personal relations and direct contact with both parents.

Section 60CC(3)(f)

I am satisfied that both parents’ capacity to provide for the needs of the child has been diminished in the past. The mother acknowledges this and is seeking assistance. The father needs to ensure that he does not speak to the child about adult issues, nor question the child about the mother’s care.
Overall, however, I am satisfied that the father has a greater capacity to meet the needs of the child at this stage, particularly the emotional needs.

Section 60CC(3)(i)

Both parents have done their best with regard to their responsibilities of parenthood. The mother has historically struggled to remain consistently emotionally available for the child, and in circumstances where notwithstanding the child spent more time with her, he has now become more securely attached to the father.
This child is very young, and in those circumstances it is not surprising that he has become more attached to the parent that has consistently provided emotional support and connection to him.
The mother should not be criticised for that. The mother has done all that she can to provide proper support for this child. I make no criticism of her whatsoever, and I trust that no one else does.
Both parents have shown that they acknowledge the importance of each other in [X]’s life. Both have given evidence of their willingness to work together for the benefit of the child, and I accept that they will. I trust that they will because this will provide the greatest future for [X] moving forward.
Nothing turns in relation to subsections (j) through (m) in this matter.

Parental Responsibility

Both parents seek an order for equal shared parental responsibility.
The evidence satisfies me that these parents have a good co-parenting arrangement and that they each have the flexibility and communication skills that provide for a sound relationship for the benefit of their son.
In those circumstances, I am satisfied that it is in the child’s best interest for an order for equal shared parental responsibility.
As I intend making that order, I must therefore consider the provisions of section 65DAA.
The evidence of the Family Consultant satisfies me that an order for equal time is contraindicated in this matter. The child had lived in an almost equal time arrangement previously, and yet still yearned for and required the need to be with his father more often. The father is this child’s primary attachment.
The Family Consultant’s evidence also satisfies me that provided the parents retain their cooperative parenting relationship, and the mother continues to seek and accept assistance, this child might benefit from an equal time order once he is older and has settled into primary school.
Time will tell, however, and I cannot today make orders providing for equal time in the future in circumstances where such an order is conditional upon the matters I have referred to continuing.
An equal time order would be reasonably practicable currently having regard to the matters set out in section 65DAA(5), although it would be beneficial if the parties lived closer to each other or at least equal distance from the child’s school at the time an equal time arrangement is considered.
The orders proposed by the father are by definition orders that provide for substantial and significant time, just as are the orders the mother proposes.
I am satisfied that for the reasons previously outlined, an order providing for substantial and significant time is in the best interests of the child.
I am also satisfied on the evidence, again having regard to the matters contained in section 65DAA(5), that such an order is reasonably practicable.
The parties live sufficiently proximate. The parties have the requisite flexibility to facilitate such an arrangement. The parties have a good level of respect for each other and can communicate effectively about the child. The impact of such an arrangement will be beneficial for the child because, to quote the Family Consultant:
“[X] will be afforded continued access to his primary secure attachment, which is integral to his positive psychological development, and be afforded regular and substantial time with the mother.”
For these reasons, I am satisfied that is in the best interest of the child for the following orders to be made.

I certify that the preceding one-hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Middleton.

Date: 16 June 2018

[2018] FCCA 923

2 March 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Consent