Connelly and Novak

FEDERAL CIRCUIT COURT OF AUSTRALIA

CONNELLY & NOVAK

[2017] FCCA 309

Catchwords:
FAMILY LAW – Parenting – parents unable to communicate due to hostility and antagonism – not in child’s best interests for shared parental responsibility – sole parental responsibility order.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA

Applicant:

MS CONNELLY

Respondent:

MR NOVAK

File Number:

DNC 177 of 2015

Judgment of:

Judge Young

Hearing dates:

25 & 26 August 2016

Date of Last Submission:

26 August 2016

Delivered at:

Darwin

Delivered on:

23 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Franz

Solicitors for the Applicant:

Darwin Family Law

The Respondent appearing in person

Counsel for the Independent Children's Lawyer:

Ms Romeo

Solicitors for the Independent Children's Lawyer:

Margaret Orwin Barrister & Solicitor

ORDERS

That Ms Connelly (“the mother”) is to have sole parental responsibility for the child X born (omitted) 2013 but shall keep Mr Novak (“the father”) informed of:
(a)any significant medical problems or illnesses suffered by the child while in the mother’s care.
(b)any significant school or child care matters.
That the child shall live with the mother.
That the child shall spend time with the father as follows:
(a)Until she turns 4 years old ((omitted) 2017) in a 4 week cycle:
(i)In week 1 Sunday from 9.00am to 5.30pm and Monday from 9.00am to 4.30pm,
(ii)In week 2 Saturday from 9.00am to 5.00pm and Monday from 9.00am to 4.30pm,
(iii)In week 3 Sunday from 9.00am to 5.30pm and Monday from 9.00am to 4.30pm,
(iv)In week 4 Saturday from 9.00am to 5.00pm and Monday from 9.00am to 4.30pm,
with changeovers to occur at CatholicCare NT.
(b)After the child turns 4 years old:
(i)If the father is working full-time Tuesday to Saturday in his present position as a (occupation omitted) in a 4 week cycle:
a) In week 1, 2 and 3 from Sunday 5.30pm to Monday 4.30pm, with changeovers to occur at CatholicCare NT;
(ii)If the father is not working full-time or his present position changes to accommodate the time:
b) In weeks 1 and 3 from Friday 4.30pm to Sunday 5.30pm and Wednesday from 4.30pm to Thursday at 4.30pm with changeovers to occur at CatholicCare NT.
(c)From the time the child begins school in January 2019 (when the child will be aged 5 years and 3 months):
(i)In alternate weeks from Saturday 9.00am (with changeovers to occur at CatholicCare NT) to Monday morning before school.
(ii)Each Wednesday from 4.30pm (with changeovers to occur at CatholicCare NT) or after school, if the parties agree, to Thursday morning before school.
(iii)The father is to provide a written work roster to the mother and is to notify the mother not less than 7 days before if he proposes that the child is to spend time with him in accordance with (ii) above.
(iv)Commencing in 2019:
a)during short school holidays, half of each holiday with the child to spend time with the father for the first half of the holiday at the end of Term 1 and alternating thereafter;
b)during long school holidays, the child is to spend half of the holiday with each parent on a week about basis with the child to spend time with the father in the second half of the first long holiday and alternating thereafter, with changeovers to occur at the latest changeover time that can be accommodated on that day at CatholicCare NT.
(v)On the child’s birthday:
a)Until the child commences school in 2019, from 12.00pm until the latest changeover time that can be accommodated on that day with changeovers to occur at CatholicCare NT;
b)After the child commences school in 2019, on a school day from after school until 4.30pm and on a non-school day from 12.00pm until the latest changeover time that can be accommodated on that day with changeovers to occur at CatholicCare NT.
(vi)For Father’s Day:
a)Until Father’s Day 2019, from 9.00am to 5.00pm with changeovers to occur at CatholicCare NT;
a)For Father’s Day in 2019 (1 September 2019) and afterwards, from 5.00pm on the Saturday before Father’s Day until before school on the following Monday, with the father to collect the child from CatholicCare NT and deliver the child to her school on Monday.
(vii)For the Father’s birthday ((omitted)):
b)Until the Father’s birthday in 2019, from 9.00am to the latest changeover time that can be accommodated on that day with changeovers to occur at CatholicCare NT;
c)For the father’s birthday in 2019 ((omitted) 2019) and afterwards, on a school day from afterschool that day until before school the following day, with the father to collect and deliver the child to/from her school.
That notwithstanding order 3 herein, the time the child spends with the father shall be suspended and the child shall spend time with the mother on the following occasions:
(a)On the mother’s birthday ((omitted)):
(i)On a school day from after school until before school the following day;
(ii)On a non-school day, from the latest possible changeover time that can be accommodated on the day before the mother’s birthday until the latest possible changeover time that can be accommodated on her birthday with handovers to occur at CatholicCare NT.
(b)On Mother’s Day:
(i)Until 2019, from 9.00am to 5.30pm on Mother’s Day with the handovers to occur at CatholicCare NT;
(ii)In 2019 and onwards, with the mother from 5.00pm on the day before Mother’s Day until before school the following day.
That if Catholic Care NT is not available to effect the changeover for the child or the child’s school or child care centre is not open the child will not spend time with the father in accordance with order 3 herein.
That the father is to enrol and complete the Magic 1-2-3 parenting course operated by CatholicCare at the first opportunity and to provide to the independent children’s lawyer a certificate of completion of the course immediately after it is completed.
Within 21 days of these orders the independent children’s lawyer shall nominate to the father a program of counselling directed to anger management and the father shall immediately take steps to enrol and complete such program and provide to the independent children’s lawyer evidence satisfactory to the independent children’s lawyer that any course of counselling has been completed.
That the father provide to the counsellor:
(a)A copy of these orders;
(b)The final written decision in this matter;
(c)The Family Report of Ms S, Family Consultant, dated 8 December 2015; and
(d)The psychological report of Mr S dated 15 March 2016; and
(e)Authority to permit the counsellor to advise the independent children’s lawyer whether or not the program has been satisfactorily completed.
The Independent Children’s Lawyer has liberty to apply in respect of this order and shall advise my chambers once the order has been complied with and her appointment will then be discharged.

Parental Communication with the child:

That upon the child turning 6 years old, the mother will purchase a mobile phone for the child and the child may communicate with the parents as follows:
(a)With the father on one day per week as agreed between the parties, and failing agreement on a Tuesday, between 6.00pm and 6.30pm in the time zone where the child is located, with the father to telephone the child’s mobile phone;
(b)When the child is spending time with the mother, on one day per week as agreed between the parties, and failing agreement on a Tuesday, between 6.00pm and 6.30pm in the time zone where the child is located, with the mother to telephone the child’s mobile phone;
That both parents will ensure the child is made available for the phone call with the other parent, and that the mobile phone is charged and can receive calls. The parents will also give the child privacy when she is speaking to the other parent.
That, if the child makes a reasonable request to telephone the other parent, the parent with whom the child is living or spending time will initiate the call to the other parent upon the child’s request.

Communication between the parents

That the parents shall communicate via e-mail message (or text message in the circumstances set out in order 14 herein) and only in relation to matters relating to the child and the father is not to use the opportunity to criticise, harass or denigrate the mother and must abide by the injunctions and restraints contained in order 25 herein.
That each parent shall notify the other parent immediately via text message should the child be hospitalised or suffer serious injury and otherwise notify the other parent of any medical treatment the child receives and the details of the treating medical practitioner as soon as practicable after the child has received such treatment.
That the father shall advise the mother and keep her advised of:
(a)His residential address and the full names and ages of the other people residing with him;
(b)His telephone numbers (including landline and mobile) at which he and the child can be contacted; and
(c)His e-mail address;
and he shall notify the mother of any changes in any such details within 48 hours, and before the next occasion that the child is due to spend time with him.
That the mother shall advise the father and keep him advised of:
(a)Her telephone numbers (including landline and mobile) at which she and the child can be contacted; and
(b)Her e-mail address;
and she shall notify the father of any changes in any such details within 48 hours.

Passports

Ms Connelly, the mother, is authorised to take all steps and sign all documents necessary to obtain a valid passport and/or passport renewal for the child, X born (omitted) 2013.
That the mother shall hold the child’s passport.

Travel within Australia and Overseas

That the mother may travel with the child on holiday (within Australia or to the (country omitted)) for up to 3 weeks outside of the town/city in which the child ordinarily resides only if:
(a)The mother notifies the father in writing of the travel not less than 28 days in advance; and
(b)The mother provides the father with a travel itinerary and contact details (accommodation name, location and a telephone number) for the child while they are away; and
(c)The mother takes all reasonable steps to facilitate the child having phone or Skype or equivalent video communication at least twice per week during the period/s of travel; and
(d)The mother is to provide alternative arrangements for make-up time with the father.
That the mother may travel with the child to the (country omitted) due to a family emergency for up to 2 weeks only if:
(a)The mother notifies the father in writing of the reason for the travel; and
(b)The mother provides the father with a travel itinerary and contact details (accommodation name, location and a telephone number) for the child while they are away; and
(c)The mother takes all reasonable steps to facilitate the child/ren having phone or Skype or equivalent video communication at least twice per week during the period/s of travel; and
(d)The mother is to provide alternative arrangements for make-up time with the father.
That for the purposes of spending time in accordance with these orders the father may travel with the child within Australia (not overseas) outside of the town/city in which the child ordinarily resides only if:
(a)The father notifies the mother of his intention to travel with the child not less than 28 days in advance;
(b)The father provides the mother with a travel itinerary and contact details (accommodation name, location and a telephone number) for the child while he is away; and
(c)The father takes all reasonable steps to facilitate the child having phone or Skype or equivalent video communication at least twice per week during the period/s of travel;
(d)The holiday occurs during time that the father would ordinarily spend with the child, or the father obtains the mother’s express written consent to take the child away at other times;
(e)All changeovers for the purposes of the holiday occur at CatholicCare NT or by the father collecting/dropping off the child at her school on a school day.
That each parent be entitled to obtain directly from any school or child care provider attended by the child, copies of any school reports, school photos or any other verbal or written information relevant to the child’s education, and for this purpose, the mother shall notify the father of the names and contact details of any school or child care provider attended by the child with 48 hours of any change.
That each of the parents be entitled to obtain directly from any health or welfare professional or any other professional attended by the child, copies of any reports, notices of other relevant verbal or written advice relating to the health and welfare of the child and for this purpose, each of the parties shall immediately notify the other party of the names and contact details of any relevant health or welfare professional and keep the other so informed 48 hours of any change.
That each parent be entitled to obtain directly from any provider of extra-curricular activities in which the child is enrolled, details of any games, matches, recitals, concerts or other special events to which parents are ordinarily invited; and for this purpose, the mother shall notify the father of the names and contact details of the provider of any extra-curricular activities within one week of the child’s enrolment in the same.
That the father be restrained and an injunction issue restraining the father from:-
(a)contacting the child when she is residing with the mother, except in accordance with orders 14, 15 and 16 herein;
(b)questioning the child about the mother;
(c)discussing inappropriate adult issues with the child, including his negative views of the mother’s religion;
(d)physically punishing, yelling or swearing at the child;
(e)driving a car without placing the child in an approved car safety seat;
(f)allowing the child to be a pillion passenger in a bicycle or ride a bicycle without a child safety helmet;
(g)consuming and/ or being under the influence of illicit substances whilst the child is in his care or allowing the child to remain in the presence of another person who is consuming illicit substances and/ or under the influence of illicit substances;
(h)consuming alcohol to excess and/ or being under the influence of excessive alcohol whilst the child is in his care or allowing the child to remain in the presence of another person who is consuming alcohol to excess and/ or under the influence of excessive alcohol;
(i)smoking in the presence of the child or allowing other persons to smoke in the presence of the child;
(j)approaching within 100 metres of the mother’s home or place of work;
(k)approaching or remaining in the presence of the mother at any venue where she is attending.
(l)contacting or communicating with the mother directly or indirectly except in accordance with these orders; and
(m)publishing anything on any social media which refers directly or indirectly to the mother, including but not limited to her parenting style, her race and culture ((nationality omitted)), her religion and these legal proceedings.
The parents be restrained and an injunction issue restraining the parents from:-
(a)exposing the child to abuse and family violence, including his/her negative views of the other parent;
(b)denigrating each other or any member of their family or persons of significance, which includes church friends, within the hearing or presence of the child;
(c)exposing the child to the details of their separation or these legal proceedings, which includes discussing financial matters with the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 177 of 2015

MS CONNELLY

Applicant

And

MR NOVAK

Respondent

REASONS FOR JUDGMENT

This is a parenting matter involving a child, X, who was born on (omitted) 2013. She is now a little more than 3 years old.
The applicant mother was legally represented at the trial. The father was not. The mother filed a trial affidavit in accordance with trial orders. The father did not. The mother was not cross-examined by the father. The mother was cross-examined briefly by the Independent Children’s Lawyer (“ICL”) about some of her present views. The ICL relied on a family report and a psychological report on the father. Neither of the authors of those reports was cross-examined. The ICL also tendered part of the father’s (employer omitted) medical file and a police report concerning a police call out to an argument between the father and his then flatmate. Each of the parties and the ICL made submissions.
In these circumstances I accept the evidence of each of the witnesses. I should say that the family report did record some disagreement between the parties about some events but, if it was necessary to make a finding, I have preferred the evidence adduced by affidavit. The mother’s affidavit contained considerable hearsay evidence. Some concerned Facebook posts by the father and others. I have accepted the evidence about the father’s comments. There was also some transcript of evidence from, apparently, a contested hearing where the mother sought a domestic violence restraining order against the father in the Local Court. The transcript appears fragmentary or incomplete but I have taken what there is of it into account as best I can. In addition, there is hearsay evidence of statements in an e-mail from a man who commented adversely about the father’s parenting abilities. I have not found it necessary to make any finding about that hearsay evidence considering the broad agreement between the parties about the time the child was to spend with the father.
It was agreed that the child would live with the mother and spend time with the father. The mother agreed that the child should spend substantial and significant time with the father although the details of that were disputed. The mother sought sole parental responsibility based, she said, on the complete inability of the parties to communicate in any sensible fashion. The ICL took the same position. The father sought equal shared parental responsibility.

Background

The applicant mother is about 33 years old. She was born in the (country omitted) and migrated to Australia in 2010. She is now a full time mother but was previously employed as a (occupation omitted).
The respondent father is now about 37 years old. He is employed full time as, I understand, a (occupation omitted).
The parties married in 2012 and began living together. They separated, according to the mother, in August 2013, before the child’s birth. The mother says the parties reconciled in January 2015 and separated again in April 2015. The father simply says the parties separated in April 2015. It is not necessary to make any precise finding about this.
At the time the parties married the father was serving in the (employer omitted). In late 2012 or 2013 the father was the victim of a very serious physical assault in, as I understand, the (employer omitted) and suffered severe injuries. He underwent surgery and was hospitalised for a considerable time. The father was seen by an (employer omitted) psychologist who identified that the father was having difficulties in his mental recovery as well as his physical recovery. He had become preoccupied with resentment and anger towards the (employer omitted). He was discharged from the (employer omitted) soon after this.

The first separation of the mother and the father occurred in the course of what must have been a very difficult period for the father. There appear to be indications that the psychological sequelae of those events may not be completely resolved.
Following the final separation of the parties their relationship became extremely acrimonious and hostile. There was an allegation of physical abuse of the child against the father in June 2015. This was investigated by the child welfare authorities and found to be unsubstantiated but the case worker noted that the child “is at risk of suffering emotional abuse due to the ongoing conflict between Mr Novak and Ms Connelly.”
The father denied ever being violent towards the mother but in the transcript from the hearing of the mother’s domestic violence order application in the Local Court on 7 July 2015 the judge made findings against the father of direct physical violence including lunging at and choking the mother, damage to property, threats to kill, and controlling, threatening and abusive behaviour although his Honour did not accept that family violence occurred in front of the child. Restraining orders were made against the father for 18 months. In addition, the transcript of the Local Court proceedings contains remarks by the judge critical of the mother for unreasonably ceasing the child’s time with the father following the child suffering a mosquito bite which became inflamed. It was said by the mother’s counsel from the bar table that the father has been charged with a breach of the order made in the Local Court but there was no affidavit evidence about that and I make no finding about it.
The father’s hostility to the mother has been expressed in a variety of ways. The Facebook posts by the father through 2015 and 2016, which appear in the mother’s trial affidavit, are extremely offensive and derogatory, often in a sexual way and sometimes in a racial way. Some of the posts were clearly intended to provoke the mother who, the father correctly assumed, looked at his posts. The mother is a member of a (religion omitted) church as was the father previously, although he now regards himself as an atheist. The father, an enthusiast for (hobby omitted), displayed a photo of the child dressed in an (omitted) T-shirt and wearing some devil horns, under a satanic reference in an (omitted) lyric. On one level this is childish but the father clearly intended to provoke the mother. More seriously, the family report writer was concerned that promoting such “diametrically opposed views” may well confuse the child in forming her identity unless prudence is shown.
The father’s insight into how others perceive his actions is lacking. In 2013 the father posted a picture on Facebook of himself with a gun in his mouth with the caption “I hate myself I want to die”. He told the family report writer that this was a joke with a toy gun at a party and the words used were by the singer Kurt Kobain (who committed suicide in 1994).When this was adduced in evidence by the mother it precipitated an order, by consent, for a mental health assessment. I will return to that in a moment.
There is also evidence that the father has difficulty controlling his impulses. On 17 February 2016 I made an order that each party was “restrained from publishing material in respect to these proceedings on social media”. The father, in breach of this order, began publishing a running commentary on the proceedings under the name “Erased family”. The mother brought contravention proceedings. Her affidavit annexed Facebook posts made by the father after the order. The posts accused the mother of physical abuse of the child, referred to orders of the court (in a very inaccurate manner), made offensive comments critical of the mother and other women engaged in family law proceedings and other remarks in a similar vein. I asked the father at the end of the contravention proceedings why he had breached the order. He referred to his sense of frustration and the need to give vent to his feelings. I have little doubt that the father felt frustrated by the proceedings but it was up to him to comply with the order. He also told me that his lawyer had ceased acting because of his refusal to stop posting on Facebook.
The father frankly told the family report writer that he often acted for effect and to elicit a response from others. The father is not unintelligent but he is in many ways his own worst enemy and appears to have little understanding of how his conduct contributes to an unacceptable level of conflict with the mother. He had little understanding of how potentially emotionally harmful it is for a child to develop in an atmosphere of such bitter conflict.
The psychological report on the father, referring to psychometric testing, said the results indicated a tendency to grandiosity and suggested the father was easily angered and frustrated. The report said that the father did not suffer from any clinically significant mental health disorder but aspects of the father’s personality, in combination with stress or a perceived threat, may cause him to respond in a way seen by others as emotionally reactive, impulsive, angry and/or impatient. The report expressed the opinion that the father’s response to stress was negative and maladaptive.
On the other hand, the report found the father to have a capacity for self-reflection and to be able to acknowledge, with hindsight, that he had made mistakes, especially with his posts on Facebook. He acknowledged that the post of the picture with the gun was a silly thing to have done and not amusing to others but likely to provoke concern. The report referred to the considerable stress experienced by the father resulting from his assault, marital breakdown and family law litigation and expressed the opinion that these environmental factors were likely to have played a part in the father’s maladaptive responses. The report concluded that while the father may experience some adjustment difficulties at times this does not significantly diminish his capacity to parent.
I generally accept this opinion, subject to the qualifications I have previously described.
The family report found that the parties were “inconsistently attuned to X’s needs and struggled to maintain a structured environment for her.” The report found that the mother’s “narrative suggested she had robust parenting skills; however the observation indicated that she had unrealistic expectations of X.” The report found that the father’s description of his parenting strategy was not “as rich as the [mother’s] and the observation identified that he struggled to enforce coherent guidance and boundaries.” The report recommended that both parents undertake a parenting course to consolidate their skills.
The family report writer noted that the father was experiencing high levels of distress and that he appeared to have problems maintaining focus on the child’s best interests. As an example she referred to advice from a Child and Family Nurse at the (omitted) Community Care Centre that the child would likely benefit from spending more time with children her own age. The father, while recognising the validity of the advice, refused to permit the mother to enrol the child in childcare. Given the father’s distress and inability to focus on the child’s needs the report writer supported the mother’s proposal for sole parental responsibility at the current time. She considered that it may be appropriate to review that if the father received treatment to assist him with his emotional regulation.
The opinion of the psychologist and the observations and recommendations of the family report writer are substantially consistent.
The family report writer relevantly recommended that:
·    the mother have sole parental responsibility,
·    that the child spend unsupervised time with the father on three mornings a week with changeover at CatholicCare,
·    that the mother enrol the child in childcare for two half days a week and provide the father with the childcare centre details,
·    that the mother provide the father with details of all health professionals involved with the child and that the father be permitted to contact them directly regarding the child’s health and welfare,
·    the parties undertake the “Magic 1-2-3” parenting course run by CatholicCare and
·    the father undertake a psychiatric assessment as a matter of priority.
The author of the psychological report did not, and he was not asked to, recommend any course or intervention that might be required of the father as a condition of the child spending time with him. However, both the psychological report and the family report identified similar elements in the father’s personality that were maladaptive. These were his impulsiveness, his response under stress and difficulty in emotional regulation. I am satisfied that it would be helpful for the father and in the child’s interests for the father to participate in some program as identified by the ICL.

Parental responsibility

The mother sought sole parental responsibility. This position was recommended by the family report writer and supported by the ICL. The basis of concern is the high level of conflict between the parties and their inability to communicate.
According to section 60B(2) of the Family Law Act 1975 (“the Act”) the principles underlying the objects of the Act include the principle that parents jointly share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about the future parenting of their children.
This principle is given expression in section 61DA of the Act which provides:
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

I am satisfied, based on the findings in the Local Court, that the father has engaged in family violence. Accordingly, the presumption in section 61DA(1) does not apply. Further, I am satisfied that the parties are unable to communicate effectively about the child’s care, welfare and development. The father told me he and the mother had not spoken to each other since separation. I consider that shared parental responsibility is likely to lead to increased conflict and associated risk of psychological harm to the child rather than responsible decision making in the child’s best interests. Accordingly, I am satisfied that an order for shared parental responsibility is contrary to the child’s best interests. This situation may change and it is certainly to be desired in the child’s best interests but these matters are very much in the father’s power. If reasonable communication focussed on the child’s best interests can be established there is no reason why an order for shared parental responsibility cannot be made in the future.
In relation to section 60CC both parents acknowledged the benefit to the child of having a meaningful relationship with both of the child’s parents and framed their proposals accordingly but I am satisfied that the need to protect the child from psychological harm is a factor to be considered for the reasons set out above.
In relation to the additional considerations in section 60CC(3) the most relevant to the circumstances of this case are:
(b) (i) - the child has a good relationship with each parent.
(c) (i) - the father, in particular, because of his expressions of hostility to the mother has deprived himself of the opportunity to participate in making decisions about major long-term issues in relation to the child.
(ca) - the mother submitted that the father does not pay child support although this was not dealt with in her trial affidavit. I make no finding about this.
(f) - the capacity of each of the child’s parents was the subject of observations in the family report and the author expressed reservations about the child focus of both parents. She recommended that both parents undertake a parenting course. The mother has completed such a course but the father has not.
(g) - the mother is from the (country omitted) and wishes to maintain her familial and cultural links by regular holidays in the (country omitted). The father is Australian born.
(j) - findings constituting family violence were made against the father in the Local Court, Darwin on 7 July 2015.
(k) - a family violence order was made in the Local Court, Darwin on 7 July 2015 against the father with the mother as the protected person. The order was for 18 months and restrained the father from approaching or contacting the mother, damaging or threatening to damage the mother’s property or assaulting, harassing or threatening the mother. I infer from the nature of the order and the evidence referred to by the presiding magistrate that the order was necessary.
As I have concluded that an order for shared parental responsibility is not in the best interests of the child it is unnecessary for me to consider whether spending equal time would be in the best interests of the child.

Time spent

As noted above, the parties reached agreement that the child was to spend substantial and significant time with the father although, consistently with the parties’ inability to effectively communicate, their inability to agree about details defeated ultimate agreement. The difficulty of deciding on the details was exacerbated by the father’s failure to provide any concrete information about his working hours, a roster or his employer’s requirements of him. His information was vague.
The proposals put forward by the parties and the ICL were broken up into 3 stages: from now until the child reaches 4 years old, from age 4 (or the beginning of 2018) to the commencement of school (beginning of 2019) and from after school commences. The mother’s agreement was conditional on the father completing a post-separation parenting course and an “anger management course”. The ICL generally agreed with those conditions but thought that some care was needed in identifying an appropriate course and she sought an opportunity to make some further inquiries. She sought an order that the father undertake such course or therapeutic intervention as she may identify as appropriate. The father apparently did not think that he needed to attend any program or course.

Until the child reaches 4 years old

It was proposed by the mother that until the child turns 4 years old (November 2017) she shall spend time with the father as follows:
(a)In week 1 Sunday and Monday from 9 AM to 5 PM,
(b)In week 2 Saturday and Monday 9 AM to 5 PM,
The father proposed Sunday 12 PM to 5 PM and Monday 9 AM to 5 PM.
(c)In week 3 Sunday and Monday 9 AM to 5 PM,
(d)In week 4 Saturday and Monday 9 AM to 5 PM
The area of disagreement was for week 2. The mother wishes to attend church with the child on two Sundays in each month. The father suggested this could be accommodated by having the child begin spending time with him from 12 PM on Sunday in week 2 and with the child spending time with him on Saturday instead of Sunday in week 4 and he would not work on the Saturday. The mother complained that this meant she had to leave her church service (which runs from 10 AM to 12 PM) early in week 2 in order to get to CatholicCare for changeover before the CatholicCare changeover “slot” closes at 12 PM. I was not assisted with any evidence about the degree of flexibility CatholicCare has with changeover times on Sunday. This is frustrating where there is dispute about these details and the court is asked to resolve them. The father apparently has some flexibility in his work hours and I see no reason why the mother’s proposal should not be adopted. The ICL did not oppose either proposal.
I will make the orders sought by the mother but some small alteration is necessary to accommodate CatholicCare NT closing times.

From age 4 (or beginning of 2018) to the beginning of school in 2019

When the child turns four years old (November 2017) the mother proposes that the child will spend one night in each alternate week, that is week 1, from Sunday 9 AM to Monday 5 PM with the father and one day in the other week, that is week 2, with the father from 9 AM Monday to 5 PM Monday. This is one night a fortnight and one day.
If the father is working full time, the ICL proposes that from the beginning of 2018 (when the child will be aged 4 years and about 2 months) the child should spend from 5 PM Friday until 5 PM Saturday in weeks 1, 2 and 3. This is 3 nights over a 4 week cycle.
If the father is not working full time, the ICL proposes that the child spend from 5 PM Friday until 5 PM Sunday in week 1 and one weekday night from 5 PM until 5 PM in week 2. This is 3 nights a fortnight or 6 nights in a 4 week cycle.
There are difficulties with the ICL’s first proposal. First, the father continues to work Tuesday to Saturday and if the ICL’s proposal were varied to 5 PM Saturday to 5 PM Sunday this would interfere with the child’s attendance at church with the mother on those days. The mother is likely to find such a regime a severe imposition.
If the father is working Tuesday to Saturday it appears that the child can spend time with him from 5 PM Sunday to 5 PM Monday. If he works Monday to Friday the child can spend time with him from 5 PM Friday to 5 PM Saturday on 3 weekends out of 4.

From the time the child begins school in January 2019

From the time the child begins school in January 2019 (when she will be about 5 years and 3 months old) the mother proposes that the child spend from Friday after school until Saturday 5 PM in alternate weeks with the father and each Wednesday after school to before school the next day. This is 3 nights a fortnight.
The ICL proposes that, if the father is working full time (presumably as a (occupation omitted)), that the child spend time with him from Friday 5 PM to Saturday 5 PM three weekends out of four. This is 3 nights in a 4 week cycle. It is difficult to implement because the father says that he generally works on Saturdays and has Sunday and Monday off.
If the father is not working the ICL proposes that the child spend time with the father from Friday 5 PM to Sunday 5 PM in alternate weeks and one weekday night in each week from 5 PM to 5 PM the following day. This is 4 nights a fortnight.
The father, as mentioned, did not file a trial affidavit and made no written submissions. There is no evidence about the detail of his work hours as a (occupation omitted) although he said in submissions that he usually worked Tuesday to Saturday and the daily hours were long. He said that he had some flexibility about the Saturday work but he preferred to work Saturday because of penalty rates.
The ICL did not state in her case outline or oral submissions why she proposed three weekend nights in four but I infer that she accepted that, due to the father’s long working hours, it would be difficult for him if the child were to spend time with him during the week. The father, who did not provide a case outline or written submissions, generally adopted the submissions of the ICL.
Given that the father appears to have some flexibility about his Saturday work (he did not give any evidence about the precise arrangements or provide anything in the nature of a roster) the most appropriate order is that the child spends time with him from Saturday morning to Monday morning before school in alternate weeks and each Wednesday from 4.30 PM to before school Thursday in each week should his working roster permit it. This is 4 nights in a fortnight.

The father should be required to provide a work roster to the mother and to notify the mother 7 days in advance if he proposes to have the child spend time with him on Wednesday nights.
In relation to school holidays the ICL proposed that the time be week about, or such other times as may be agreed, so the time was spent equally with each parent. I accept this is appropriate.
The mother also sought permission to interrupt any schedule so that she could travel to the (country omitted) to visit her family at Christmas. I accept that this is appropriate.
I will also make orders about events and occasions of particular significance to the child and of special significance to the parents.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 23 February 2017

[2017] FCCA 309

23 February 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies