D and A - [2003] FMCAfam 138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & A

[2003] FMCAfam 138

FAMILY LAW – Children – residence order – child aged 6 years – whether there should be an order for shared residence.

Family Law Act1975, ss.60B, 65E, 68F, 68K

Harrison & Woollard (1995) 18 Fam LR 788; FLC 92-598
R & R (Children’s Wishes) (2000) 25 Fam LR 712; FLC 93-000
Joannou (1985) FLC 91-642
Raby (1976) 2 Fam LR 11348; FLC 90-104
Granow (1979) 144 CLR 513; 5 Fam LR 719; FLC 90-716
Epperson v Dampney (1976) FLC 90-061
Cullen (1981) 8 Fam LR 35; FLC 91-113
McEnearney (1980) FLC 90-866
Chandler (1981) FLC 91-008
H & H - K (1990) FLC 92-128
Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

D D

Respondent:

M C A

File No:

NCM 5442 of 2002

Delivered on:

3 April 2003

Delivered at:

Coffs Harbour

Hearing dates:

1 & 2 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Loomes

Solicitors for the Respondent:

Ms Susan Green

ORDERS

the child of the relationship, A D, born 13 September 1996 is to reside with the Respondent mother who is to have the responsibility for the long term and day-to-day care, welfare and development of the said child;
the Applicant father is to have contact with the said child as follows:
(a)each alternate weekend during school term time from after school on Friday to the commencement of school on Monday, or the commencement of school on Tuesday if the Monday is a public holiday, commencing on Friday, 4 April 2003;
(b)for one half of the autumn, winter and spring school holidays in each year, being the second half in 2003 and each alternate year thereafter and the first half in 2004 and each alternate year thereafter;
(c)by telephone at all reasonable times;
(d)on the weekend that includes Father’s Day each year at the same times as are set out in Order(2)(a) above.
(e)from 3.30 pm to 5.30 pm on the child's birthday if that day falls on a day when the child is required to attend school and from 12 noon until 5 pm if the birthday should fall on a day when the child is not required to attend school and if the day falls on a day when the father is not otherwise entitled to exercise contact;
(f)for one half of each Christmas/January school holiday period being the second half in 2003 and alternate years thereafter and the first half of the said school holidays in 2004 and each alternate year thereafter;
(g)from 12 noon on Christmas Day to 5 pm on Boxing Day in 2003 and each alternate year thereafter;
(h)such further times as the parties shall agree;
the father is not to exercise contact with the child on the weekend that includes Mother’s Day of each year;
for the purpose of exercising contact pursuant to Orders (2)(a) and (2)(d) above the father is to collect the child from the bus stop in B at the commencement of contact and return the child to the bus stop at the conclusion of each contact period;
the purpose of exercising contact pursuant to Order(2)(b) and (f) above, the father is to collect the child from a place nominated by the mother not being a place within 100 metres of the mother's residence, to include the B Courthouse whenever possible, and the mother is to collect the child from the father's residence at the conclusion of each contact period;
school holiday contact for the first half of the school holidays is to commence at 9 am on the day after school term ends and is to conclude at 5 pm on the middle Saturday of the school holiday period;
school holiday contact for the second half of the school holidays is to commence at 9 am on the middle Saturday and is to conclude at 5 pm on the day the before the said child is required to commence school;
the words:
Long term care, welfare and development of the child
in Order(1) above include the responsibility for deciding which school or other education institution the child is to attend pursuant to the requirements for a child to attend school according to the law in the State of New South Wales;
the words:
Day-to-day care, welfare and development of the child
in Order(1) above include the responsibility for deciding when and how the child's hair is to be cut;
The mother is to do all things necessary to authorise the principal of any school attended by the child to provide to the father on a regular basis copies of all school reports, newsletters, bulletins, information about school photographs and other documentation normally forwarded to parents of children attending that school.
All documents produced on subpoena may be returned after one month from today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

NCM 5442 of 2002

D D

Applicant

And

M C A

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the father of a little girl called A D who was born on 13 September 1996 for Orders that the father and mother should share the child's residence between them in this way:
(a)that the child should reside with the father from 3 pm on Friday until 3 pm on Tuesday in each week;
(b)that the child should reside with the mother from 3 pm on Tuesday until 3 pm on Friday in each week.
The father also seeks Orders requiring all communications between the parties to be in writing and restraining them from having any verbal contact and restraining them from making any derogatory comments to the child about the other party.
In his Affidavit sworn on 31 March 2003 the father put some alternate shared care proposals, namely:
(a)that the child live with him from the Sunday night until Friday afternoon each week;
(b)that the child live with the parents on a week about basis with the changeover being 5.30 pm each Sunday.
The father also seeks an Order that the child should attend the B Primary School. The mother has arranged for the child to attend the O Primary School, which is a small school at a place called T, a number of kilometres out of B.
The background to this matter is that the father was born on

23 September 1960. He is 42 years old. The mother was born on

24 May 1978. She is 24 years of age. She will be 25 in May. The mother commenced boarding with the father in 1993. She was 12 or 13 years of age and had left home and, indeed, the evidence appears to be that she was estranged from her family.
In 1995 the parties commenced cohabitation. The mother was 17 at the time and in due course she became pregnant. The parties were living in Armidale and B. The child, A, was born 13 September 1996. The parties separated a little over a year later on 9 October 1997. From 1997 to 1999 there was regular contact during the day between the child and the father and then there was commencement of overnight contact.
In the year 2000 there were weekend visits and then virtual shared residence on a split week basis. In the year 2001 through to the middle of last year the arrangement was that the child would be with the father from the Friday until Tuesday. By mid 2002 there had been some difficulties arising between the parties and, indeed, on 12 July 2002 the mother sought an Apprehended Violence Order against the father.
The Local Court made that Order on 25 September for a period of 12 months so it is still in force.
The Applicant commenced proceedings in the Local Court of New South Wales at C H on 25 July returnable on the 30^th. Those proceedings were transferred to the Family Court of Australia at N.
On 31 October 2002 the Family Court of N sitting here at C H dealt with the Application for the first time. On that date, Principal Registrar Filipello made some Interim Orders. Those Orders provided that until the child A commenced school, she was to reside with the father from 3 pm Friday to 3 pm Monday in each week and reside with the mother for the remainder of the week.
There was a place for contact changeover at the H and W building. In the event that the child attends preschool, the parties were to share the costs equally. Once the child commenced school, she was to reside with the father from after school on Thursday to before school on Tuesday on each alternate weekend and until further Order, the parents were to have joint responsibility for the day-to-day decisions concerning the care of the child.
Pursuant to section 33(B) of the Family Law Act, the Application was transferred to this Court for hearing at this Court's sitting at C H with a directions hearing on Monday, 20 January. The proceedings having been transferred to this Court, they came before me on 20 January.

I ordered a Family Report and made directions for the matter to be heard at this sittings and the Application was, in fact, heard before me on Tuesday, 1 April and Wednesday, 2 April.
Looking at the issues in this matter, the mother opposes the father's Application. She, in fact, has submitted some minutes of proposed Orders which deal with two scenarios. In each case she seeks that the child A should reside with her and she should have the day-to-day responsibilities for the care, welfare and development of the child.
There are two scenarios that she proposes. One of them is that the father should have contact but that there should not be overnight contact. In that case, what she proposes is that the child should spend time with the father from 9 am to 5 pm on Saturdays and Sundays each alternate weekends, times on the child's birthday, times during the day on Christmas Day, liberal telephone and written contact and other contact as agreed.
Now, the mother also proposes a set of Orders, which she believes, would be appropriate if, in fact, the Court considers that overnight contact between father and child was appropriate. That contact includes from after school Friday to the commencement of school on Monday on alternate weekends, for half of the mid year school holidays, liberal telephone contact, time of the child's birthday, the usual no contact on a Mother's Day weekend but a guarantee of other contact, an Order that the mother should not have the child on the weekend that includes Fathers Day and contact during half of the Christmas school holiday period and other times.
She also seeks specific Orders about transportation and contact changeover, that she should have sole responsibility for the decisions about the child's schooling and about the child's hair being cut. I would comment I heard no evidence about hair cuts but I am of a view that that normally comes within the purview of day-to-day care, welfare and development of the child and in the Orders which I am going to make I do provide some definitions as to what such things mean.
So, the issues between the parties as I heard the case were these:
(a)whether a shared residence Order is appropriate as the father suggests or whether there should be a residence Order and a contact Order which is the mother's proposal;
(b)whether or not there should be overnight contact between the father and the child;
(c)whether the child should attend the O or the B Primary Schools.
The father gave evidence by Affidavit and was cross-examined by

Mr Loomes, counsel for the mother. The father's ex-wife, S R E, who is the mother of the father's daughter, S, gave evidence by Affidavit. She was cross-examined over the telephone in G I where she works.
The Court also received Affidavit evidence from A C W, G I R, D G R and B R. These people were not required for cross-examination. An Affidavit by a child called A, was tendered in evidence but was rejected as the document had been obtained without leave of the Court.
The Respondent mother gave evidence by Affidavit in her case and she was cross-examined by the father. The mother also relied on Affidavit evidence of one B F P. The Affidavit was sworn on the first day of the hearing, 1 April. Mr P is the father of a girl called K M P, who is 16 years of age. I was interested to note that it was the same Mr P who actually served sealed copies of the father's original Application and Affidavit in support of the Respondent mother and the proceedings were commenced on 25 July 2002.
He is the deponent of an Affidavit of service dated 26 July. It appears on the Court file and that is how the document came to my attention when I was preparing this judgment. I have today heard submissions both from the Applicant and from counsel for the Respondent about that unusual circumstance. I am satisfied with the explanation given to me as to how it came about that Mr P was the person who actually served the documents on behalf of the Applicant.
It was put to me that the Applicant had performed a similar service for Mr P in respect of his own matrimonial proceedings in the past and the Applicant was aware that the rules prohibit a party from serving documents personally. As Mr Loomes so aptly put it, we are dealing with a small town and I am satisfied that I should draw no untoward inferences whatsoever from this particular circumstance.
A Family Report was prepared by a Regulation 8 counsellor, J S, who is a registered psychologist and a former school counsellor. Ms S was cross-examined over the telephone. It is the mother's evidence that the father allowed her to board in his home when she was 15 years of age. Eventually, they commenced a sexual relationship when the mother was aged 17. She claims the father had a controlling nature and spoke to her in a belittling and derogatory manner. She describes incidents where she said he acted irrationally and later violently culminating in an incident on 19 July 2002, which led to the police applying for an Apprehended Violence Order for her protection from the B Local Court.
The mother has expressed strong views about what she says is the father's proclivity to enter into a relationship with girls much younger than himself. She has produced copies of what are quite clearly love letters written by the father to K P who was then and is now 16 years of age. The father admits that he wrote those letters and says that the relationship has ended.
The Affidavit of Mr P, K's father, deposes to his concerns about the relationship between his daughter, K, and the Applicant father in these proceedings. That child now resides, I understand, in Victoria. The father admitted his attachment to Ms P but denies having entered into a sexual relationship with her. He says that he has never acted inappropriately towards either of his daughters, A or S and indeed, he denied strongly that even if he were interested in young women that that would lead to his acting in an inappropriate way towards his own female children.
Mr E, in her Affidavit, spoke of the father's love for his children. She did express the view that the father could be intimidating to women. She was not surprised that the mother had, in fact, obtained an Apprehended Violence Order, but she was not of the view that the father would act inappropriately towards either her daughter, S, or to the child, A.
As I indicated earlier, Ms S, the writer of the Family Report, was cross-examined. Her report was prepared in some detail. For the purpose of preparation of her report she interviewed the mother, the father, the little girl, A, albeit briefly, the father's daughter S, who was born on

17 March 1991, the father's mother, that is, A's paternal grandmother, M D, the father's sister, J D and the father's sister's partner, T C.
The counsellor's observation of the mother was that she was a young and nervous woman with a strong attachment to the child, A, and she described the development of the relationship. She described how the mother indicated that in April she intended to move to the village of T outside B which is close to O school where she has enrolled the child, A.
There were some parts of the counsellor's report, namely, paragraph 2.12, where it was the mother's evidence that the counsellor had misinterpreted what she said about her plans for employment. The mother made it clear in cross-examination before me that her primary concern at this stage was to be a parent to A although she was involved in a variety of other activities, especially musical activity, which did not put her in the position of being in paid employment. So there was certainly some difference between the mother's evidence as to what she told the counsellor and what the counsellor believed the mother said.
The counsellor described the father as an articulate, confident and very loquacious man who was eager to be heard. He described his family background, which was somewhat dysfunctional. He denied to the counsellor that he had ever touched the mother in a violent way but admitted they had both given some verbal abuse to each other. He told the counsellor the relationship had now broken down and they were only communicating between solicitors. He gave an account to the counsellor about his relationship with a girl, K P. He told the counsellor that the child, K became fond of him and he had to distance himself from her because he felt this was inappropriate.
The father's evidence on this point is somewhat different and, indeed, Mr P's evidence is somewhat different. The father told the counsellor of his objection to the child attending the O Primary School. He indicated his preference for the B Primary School, which is a large public school in the town and pointed out that the child, S, had attended there.
The counsellor spoke to the child, A. A was happy to talk about her parents. She said that she enjoyed seeing the father. She had not seen him for ages and that she had missed him. She indicated that she like it when she stayed at Mum’s and she liked it when she stayed at Dad's and she commented on the fact that she had not seen her father for a while.
She told the counsellor she liked attending O School and she drew, as children often do with counsellors, pictures of people who are significant in her life. The counsellor interviewed the child, S, who is a half sister to A and is some 12 years of age. The counsellor described S in positive terms as a well-balanced girl of 12 years who was happy to talk to the counsellor. S had been residing with the father but is now living back with her mother.
S expressed a positive view of the father and of A. Indeed, the counsellor observed interaction between A and S and described the children at paragraph 12.3 as appearing to have a close and comfortable bond with each other at age appropriate levels. The counsellor, as I said earlier, interviewed the paternal grandmother who was described as a caring and honest woman who loved her grandchildren and her son, interviewed the sister, J D, who was described as a fond sister and aunt who wanted to be fair to both parties and the partner, T C, who was presented as a supportive member of the family.
It is noteworthy that the mother and the father agreed to a joint interview after their individual interviews. The counsellor reports at paragraph 9.2 that the mother became very emotional and extremely angry with Mr D as she said she believed he had been lying and the interview was terminated.
The counsellor's observation of the children with both parents was positive. The counsellor spoke to S E over the telephone. S E told the counsellor of the father's good qualities as a father to both S and A but described him as a partner being very controlling and, from her point of view, he had repeated a similar pattern with each of his three relationships.
The opinion and recommendations expressed in the Family Report were that the child should continue to attend the O School and that there should be a shared residence arrangement. Now, the counsellor was cross-examined in some detail by Mr Loomes of counsel about the proposal for a shared parenting arrangement. She agreed that she had not taken into account the letters relating from the father to the child, K P, and it was in fact put to her that the father had admitted writing those letters, had admitted the relationship had ended but the father emphatically denied that there had been any form of a sexual relationship with the girl, K.

It is fair to say that it her cross-examination, whilst the counsellor did not abandon her recommendation of a shared parenting arrangement that she did retreat somewhat from it. She expressed the view that she was concerned that both parents had a degree of social isolation and considered that each parent was important to the child and the child could draw from the separate strengths of each parent and that was the basis for her recommendation.
Dealing with the question of the child's school, it was recalled that the counsellor had spoken in some positive terms of this in the report. This was confirmed in her cross-examination. She expressed the view the child, A, would thrive, to use her expression, at a small school like O, and recommended that she should continue to be enrolled there. The fact that there were only 31 students and A would be in a class of eight of students of different ages. It was seen as a positive point.
A started school at the age of six and was in a composite class with children of her age even though in a school year they may be ahead of her. She took the view that A would fit comfortably into what was from the school environment more like a big family environment.
What are the principles that the Court should look at in deciding these issues? Well, of course, I look at the objects set out in section 60B of the Family Law Act and it would be useful to actually restate some of those objects. The object of subsection 1 says that:
The object of the part is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection (2) sets out some principles which underlie that object and they include:
(a)That children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
(c)parents share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children.
Regrettably, number (d) is often more a pious hope than a reality in this jurisdiction but as a principle it is one that should be recommended.

I am also bound by section 65E of the Family Law Act which says that:
In deciding whether to make a particular parenting Order in relation to the child the Court must regard the best interests of the child as the paramount consideration.
Section 68F(2), contains a number of matters which the Court must consider in coming to a conclusion as to what is in the child's best interest. Now, they go from paragraph (a) through to paragraph (l). Now, not all of them are going to be relevant in every case but, nevertheless, I have given consideration to those particular matters. Section 68F(2)(a) relates to the wishes of the child, including the child's maturity and level of understanding.
The Family Report makes it clear that at the preparation of the report the child, A, enjoyed seeing her father, that she was excited to see S, that she expressed an opinion that she liked O School and that she told the counsellor that she wanted to spend time with both parents. Now, I have got to take into account the child's age. She was born on

13 September 1996. She is 6½ years old and clearly her wishes must be considered in the light of her age and her state of maturity.
Now, it does not mean that children's wishes should not be considered. Indeed, it is made quite clear in a number of cases that the child's wishes should be considered. I refer to Harrison v Woollard (1995)

18 Fam LR 788, also reported as H v W (1995) FLC 92-598 where the Full Court made it clear that not only must the children's wishes be considered but they must be shown to be considered.
There is the case of R v R (Children's Wishes) reported in 2000

FLC 93-000 which said:
That whilst the Court must consider the children's wishes, the Court is not bound by the wishes of the children.
Obviously this has a lot to do with the age and state of maturity of the children. It has been made quite clear by the Full Court of the Family Court in cases such as Joannou (1985) FLC 91-642:
That the wishes of young children from 8 years of age down to 4 years of age would not be irrelevant.
So these matters must be considered and clearly the child A who is a child who has expressed some wishes about spending time with both parents, in fact wishes about where she wants to go to school and I must give that some weight.
Paragraph (b) of section 68F(2) refers to the nature of the relationship with the child with parents and with other persons. I am satisfied this child has a good relationship with both her mother and her father. She seems to have a particularly good relationship with S, who is of course her half-sister. It seems to be an age appropriate sister relationship. The report indicates that she has good relationships with her parental grandmother and with her aunt.
Indeed, the counsellor at paragraph 14.10, describes the child as having:
Loving and satisfying relationship with both parents and

Mr D's family.
Paragraph (c) of section 68F(2) refers to the likely effect of any change in the child's circumstances. This child has spent time during her young life in a virtual shared care arrangement. She has also spent some time where she did not have contact with the father for a while. It would appear that if this child were to have any extensive separation from her father, this would have a negative impact upon her.
The child S, who was living with the father, now lives with her natural mother Ms E, and the counsellor was firmly of the view that arrangements need to be made to foster the relationship between A and S. It appeared to the counsellor that both children derived pleasure and benefit from that sister relationship and that is one that should be considered. S lives with her mother, but the evidence is that she will be spending a considerable amount of school holiday time with her father.
Section 68F(2)(d) looks at the practical difficulty and expense of contact. The parties live in the B area, although the mother intends to move out of town a bit to T. I am of the view that expressed animosity between the parents, especially by the mother to the father, and in fact a general lack of communication is something that I would regard as a drawback as far as difficulties of contact is concerned.
Section 68F(2)(e) looks at the capacity of each parent to provide for the needs of the child. The father is regarded as a good father by a number of witnesses. The mother at one stage appears to have denied contact to the father as a result of an incident of what she saw as controlling behaviour by the father including the father's continued attempt to enforce a change of schools on the child from the O Primary School to the B Primary School.
The criticism could be made of the mother that perhaps in reacting to the father's controlling behaviour as she saw it, she perhaps did not appreciate this child's desire and need for regular contact with the father.
Section 68F(2)(f) looks at the child's maturity, sex and background. A is a little girl aged six. Her background is European/Australian. She is not Aboriginal or Torres Strait Islander on any of the evidence before me. It is quite clear in the law these days that there is no preferred role of the mother. There is no preference by a Court that young female children should normally reside with the mother rather than the father but the reality is that the matter must be looked at on its merits.
There are a number of authorities on this, including the decision of Raby reported in (1976) FLC 90-104 and Gronow (1979) FLC 90-716. Gronow was a decision of the High Court of Australia and the High Court in the various judgments firmly affirmed the view that there is no mother principle and, indeed, the New South Wales decision of Epperson v Dampney (1976) FLC 90-061 was subject to considerable criticism.
What the correct principle is is that the Court looks at the child, looks at each parent and makes a decision about the relative strengths and attributes of each parent and how that works for the best interests of the child.
Now, I am required to look at what can be lumped under the heading of violence issues. Paragraph (g) of section 68F(2), (i) and (j) all refer to that. In looking at violence issues I must also look at s 68K of the Family Law Act. Paragraph (g) looks at the need to protect a child from physical or psychological harm. Paragraph (i) looks at domestic violence within the family. Paragraph (j) looks at the existence of Family Violence Orders as the Family Law Act refers to them.
There is an Apprehended Violence Order in force. It was made on

25 September 2002 at B Local Court. The Order is in force for a period of 12 months. The protected person referred to in the Order is the Respondent mother. The Orders that were made were of the standard of Orders restraining a defendant from engaging in contact that intimidates a protected person and from stalking a protected person.
Other Orders made were:
1. The defendant must not assault, molest, harass, threaten or otherwise interfere with a protected persons;
4. The defendant must not go within 100 metres of the premises at which the protected persons may from time to time reside or work or other specified premises;
11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person;
12. The defendant must not approach the protected person.
Interestingly enough the Orders are not drafted in such a way to provide any exception in respect of dealing with issues of contact with the child pursuant to the Family Law Act.
Section 68K requires me to be aware of the existence of a Family Violence Order, namely, the Apprehended Violence Order, to decide in considering what Order to make that I must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that any Order that I make is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence.
Now, the situation is that Courts exercising jurisdiction under the Family Law Act can in certain circumstances make Orders that are inconsistent with a Family Violence Order. It is quite clear from section 68K that so far as is possible, consistent with a child's best interests, I should make Orders that would allow my Orders and the Orders of the B Local Court to co-exist.
Indeed, it is not uncommon in some Local Courts exercising jurisdiction under the Family Law Act that they have a Family Law list and an Apprehended Violence list at the same time.
In this case, I note that the minutes of Orders sought by the mother involve the suggestion that at the conclusion of contact that the mother would collect the child from the father's home which would not cut across the Order, but at the commencement of contact the father would collect the child from the mother's home. That does not tie in with what is set out in the Apprehended Violence Order that is in force.
As a result of the evidence that I have heard I am not satisfied that I should make an Order that would require the father to attend at the mother's home. That is currently prohibited by the Apprehended Violence Order and I am not of the view that I should vary that and I see no reason in the child's best interests why that should be necessary. It may cause some inconvenience but I am of a view that the Apprehended Violence Order is in place and that I am required by section 68K to pay proper attention to it. So I should make it quite clear that I am not satisfied that an Order should be made that would require the father to be put in the unfortunate position where, on the one hand, he has to go to the mother's home but, on the other hand, he is told not to.
Paragraph 8 of section 68F(2) refers to the attitude to the child and responsibilities of parenthood of each parent. The counsellor was of the view that both parents were socially isolated. The counsellor expressed some concern that the mother was perhaps too focussed on the child. Paragraph (k) requires the Court to look at making an Order least likely to lead to the institution of further proceedings.
There have been no proceedings on the evidence before me until these proceedings were commenced last year. There is a need for stability in the child's life and indeed, in the life of the parents. It would appear to me that an Order depriving the father of regular contact with the child, A, or an Order that deprived A of contact with the child, S, could well be likely to lead to further litigation and, in any event, I am not of the view that those Orders would be seen to be in the child's best interest.
I am mindful of the fact that A is still only 6 years of age and that it is a long way until she is 18, but I am of the view that there should be an Order providing who she is going to live with and some map to the future which would lead to some stability. I look at whether there is any other relevant fact or circumstance and I am not of a view that there is.
What conclusion should I draw about the issues that are before the Court? The first one, of course, is should the Court make a shared residence Order. Well, there are reasons that would support that. First, the father says there should be a shared residence Order. Second, the history of the relationship between the parties shows that for certainly for some time in the past there has been a form of shared residence in existence. The Family Report it its recommendations supported a shared residence Order, although as I said, the counsellor withdrew to some degree on the strength of that recommendation.
The mother, of course, does not agree that there should be a shared residence Order. There are a number of decisions before the Court that I should take into account. I referred earlier to the decision of the Full Court of the Family Court in Gronow and in that case there were comments that a joint custody, as it was known in those days, may be a desirable solution in certain circumstances. The particular paragraph is at page 70856 and is contained in the judgment of Murphy J. His Honour said:
In some cases, despite some switching back and forth, joint custody may be a desirable solution where the parents live near one another so the schooling and other behaviour patterns are not disrupted. The theory is that although some adaptation on all hands is necessary the child does not suffer deprivation of one parent which is only slightly mitigated by access which, it itself, may lead to artificial relationships and problems worse than those of joint housing.
His Honour went on to say that in the case before him joint custody, as it was then, was impracticable because the wife lived in N and the husband in Sydney. His Honour went on to say:
And also because the hostility between them.
A landmark of the judicial discussion, if you like, of joint custody seemed to have been reached in the decision of Cullen v Cullen (1981) 8 Fam LR 35; FLC 91-113. In that case, the Full Court of the Family Court upheld the trial Judge's decision not to grant joint custody because of the hostility between the parties. I refer to the decision of Strauss J, page 76,847 where His Honour referred approvingly to a decision in Foster v Foster where the Court said:
We think it inadvisable to attempt to lay down principles to operate to fetter a Judge's discretion.
In other words, we think it wrong to approach the problems from the point of view that a joint custody Order should be made only in the most exceptional circumstances. His Honour, in deciding the welfare of the children must be the paramount consideration, went on to say later on that page that:
With the greatest respect, the normal situation under the Act is that where both parties live together or where the parties do not take recourse to the Court they have the joint custody. However, where the parties are separated or sought the intervention of the Court, by far the more "normal" situation, is that one of the parties has been granted the sole custody unless they have consented to an Order for joint custody.
His Honour went on to say at page 76,850 that:
In our view, the situation disclosed on the record does not show two parents able and willing to cooperate as loving parents.
His Honour referred in a most erudite decision to some United States decisions, including a decision of Dodd v Dodd (1978) 403 NYS 2d 401, a decision of Shay J, where His Honour said:
However, when one parent resists joint custody and refuses to be persuaded that it is workable what will be the result for the children when it is ordered by the Court. There appear to be no social science studies that can answer this question. The most ardent professional components of joint custody assume cooperation between parents in agreement about child raring practices and was basic requirements of joint custody. It is hardly surprising that joint custody was generally arrived at by consent.
Strauss J, after quoting that paragraph went on to say:
In our view, the situation disclosed on the record does not show two parents able and willing to cooperate as loving parents.
His Honour referred to a Canadian decision called Kruger v Kruger and His Honour pointed out that the fact that in that case there was no agreement on the question of joint custody. It was treated by the majority in the Appeal decision as a major factor in not granting the joint custody.
Bell J in that same case at page 76,802 quoted a decision called Zwicker v Morine, a Canadian decision where two principles were set out by the Judge:
The matters which the Court should have before it when considering a joint custody Application would include the following:
1. that each of the parties accept the other as a fit parent to have custody of the children;
2. each of them is persuaded that he or she can cooperate with the other.
Bell J, in this case, went on to refer to a list given by Nygh J in earlier cases of McEnearney (1980) FLC 90-866 and Chandler v Chandler (1981) FLC 91-008 as to the matters upon which parents should generally agree with the joint custody arrangements should work.

I have the decision of Chandler here where His Honour summarised "joint custodianship", as he referred it:
Parties remain jointly responsible for all major issues affecting the welfare of the children. That includes such issues such as the education of the children, what school they are to attend. It also includes such decisions as any major medical treatment of the children, which will, in due course, include any decisions the parents will have to make concerning the future careers of these children. It also implies an obligation to consult the other spouse in any changes as regards the residential arrangements of the children.
More recently the concept of joint residence or joint custody, as recent as 1990 in a decision of H v H-K (1990) FLC 92-128, a decision of Kay J. In that case, at page 77,852 His Honour described the circumstances of the particular case before him in these terms:
This case, in my view, represents one of those rare occasions when a shared parenting Order is more appropriate than a sole custody. It presents because of the tender age of the child. It presents because of the geographic proximity in the homes of each of the parties. It presents it because of the wife's mother being a focal point of both parties, particular being friendly with the husband and it presents it because the child has already learnt in her tender years to accept such an arrangement and to function adequately under such an arrangement.

Those then are the principles with which the Court should be familiar in looking at a shared residence arrangement. It is noteworthy that shared residence arrangements do come before the Court and are certainly referred to by counsellors from time to time and, indeed, it was put to the counsellor in cross-examination by Mr Loomes. He asked her whether in her training there was some, if you like, institutional predisposition towards recommending joint residence.

Ms S replied that there was not but she considered each case on its merits.
I considered this case on its merits. There are a number of matters which, to my mind, militate against the granting of joint residence. First, there is the obvious and palpable animosity by the mother towards the father. This becomes clear in a number of ways:
In the mother's evidence. The mother gave her evidence in a firm, at times almost strident way and whilst she indicated that she did not have any ongoing feelings of anger I am of a view that on my observations the witness still appeared to show some anger towards the father because of what perceived were the father's unjust assessment of her during the relationship and, indeed, she said at one stage, and I asked her about this:
Some things that have gone down between us were not right.
Is this a one-way street, the anger between the mother and the father? Well, I look at the father's Application. The father expressed the wish that an Order should be made that all communications between the parties should be in writing and not verbal. The father admitted in the evidence that they had no real conversation for a period of three years. I also cannot get around the fact that there is an Apprehended Violence Order in the course and that places certain restrictions on the father.
The evidence, too, of the counsellor, J S, about the parties attending for the Family Report also indicates a degree of animosity. Whilst it appears that the animosity was directed by the mother to the father, one cannot escape the conclusion that it is there. I refer to paragraph 9.1 to 9.3 of the Family Report:
Ms A and Mr D each agreed to a joint interview after their individual interviews. Ms A became very emotional and extremely angry with Mr D as she said she believed he had been lying. The interview was terminated.
The degree of hostility between the parties, the lack of communication between the parties, would to my mind be a contra-indication of the advisability of joint residence. It is also noteworthy in this very case that the parties could not agree about which school the child should be enrolled in. Indeed, the mother has placed the child, on her evidence, at O, had got to the stage of buying school uniforms for the child then not being informed by the father, as she said, until three days beforehand that he objected to this and he wanted her to go to B. What the mother then said the father did was to unilaterally proceed to enrol the child at B.
Exhibit 1 before me is a copy of letter dated 11 February 2003 from the mother's solicitor to the solicitor then acting for the father. It begins:
I note that your client has continued to take the child in this matter to B Primary School despite the fact that the headmaster has informed that this is inappropriate. I understand from my client that she considers what the father is doing not to be in the best interests of the child and, in fact, is damaging to her. Accordingly, unless I receive an undertaking given on your client's behalf that the child will attend O Primary School when she is in contact with her father the child will not be handed over as this removal from the normal school is far too disruptive.
Now, if I look at the decisions of the late Nygh J in both McEnearney and Chandler, agreement on the child's education and where she goes to school, a matter His Honour specifically had in mind when looking at the question of joint residence. Here we had open hostilities between the parties on that very issue.
Of course, the Family Report did make a recommendation, though as I said that was watered down somewhat in cross-examination. The Family Reports, of course, referred to a decision of the Full Court of the Family Court in Hall v Hall (1979) FLC 90-713. There is a set of principles set out in a joint judgment by the Full Court which, to my mind, are as valid today as they were in 1979. And, of course, a decision of the Full Court of the Family Court is binding upon me unless it has been overruled by a decision of the High Court.
I am not aware of any decision of the High Court of Australia overruling Hall v Hall but Their Honours said:
“(a) there is no magic in the Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the Court, or that the Judge is abdicating his responsibilities;
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the Judgment of a Court it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before it;
(c) while the counsellor's views will normally have weight with the Court because of his or her expertise and experience, the counsellor does not usually have the same opportunity as the Trial Judge to weigh the evidence, observe the demeanour of the witnesses in Court under examination or cross-examination, or make finding of fact based on evidence before the Court which might not have been available to the counsellor;
(d) hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted which turn out to be wrong, or favourable or unfavourable views formed by a counsellor from interviewing parties without the opportunity to test in depth the credit of persons, who may in Court under

cross-examination or in the face of evidence of other witnesses, prove to be a different character from that which the counsellor has accepted.”
There are other principles there which refer to the desirability for

cross-examination of counsellors and the Court will be assisted by cross-examination in the proper case and, indeed, that happened in this case and I was assisted by that cross-examination.
I am of a view therefore that whilst there is a recommendation in the Family Report that there should be an Order for joint residence and, indeed, the father presses that on me, an equal sharing of responsibility, for the reasons of the poor communication between the parties, the hostility in existence between the parties, particularly the animosity of the mother towards the father, the inability of the parties to agree about the child's schooling, the father's acknowledgment of the lack of communication and his desire that communication between parents should only be conducted in writing and there should be no verbal communication at all, that I am satisfied that I should not make an Order for joint residence.
What Orders should be made? There has been an Order for joint residence in the past. I am of a view, however, that this child should primarily reside with the mother and there should be contact with the father. There is clear evidence to indicate that this child has a good relationship with the father and wishes to spend time with him. There is clear evidence that the father of the child has a good relationship with the child, S, and wishes to spend time with her.
The best way for A to spend time with S is to spend time with the father so that S and A can be together at the same time. There is evidence that the child has a good relationship with her paternal grandmother and paternal aunt. It appears that the mother is estranged from her family, which is regrettable but is a fact of their existence.
Should there be overnight contact? The mother is most critical of the father for what she sees as a continuation of his pattern of befriending vulnerable young woman, or in fact, girls rather than woman. She sees in the relationships the father has had since then a repetition of what she sees as her relationship with the father and she fears that that will continue. It is for these reasons that she has fears that overnight contact may impose an unacceptable risk on the child.
I am not of a view that there is such evidence of unacceptable risk that I should make an Order that there should be no overnight contact. The mother of the child, S, is certainly not of that view. There is certainly evidence that the father has formed a relationship with teenager girls, including the child, K P, who is still aged 16.
I should make it clear that there is no evidence before me that would lead to any finding that the father had had sexual intercourse with a person below the age of consent. I advised the parties yesterday that I had to decide this case on the evidence. There is no evidence that the father has had intercourse with a person below the age of consent. Girls, who are aged 16 in the State of New South Wales, and indeed in most parts of Australia to my knowledge, are at liberty to engage in sexual relationships with an adult male if they wish. They are able to give a valid consent. They are not able to give a valid consent under the age of 16. There is just no evidence of that.
There is no evidence that would show me that apart from a question of psychological harm to the child in the verbal and at time, in the evidence before me, physical communication between the mother and the father in the presence of the child that there has been any harm to the child, A, and it does not appear that there has been any harm to the child, S.
If I were of a view that there was an unacceptable risk that the father would harm the child, A, then I would have no hesitation in placing restrictions on the contact. There is no evidence before me of that. If the parents remain apart and do not engage in arguments in the presence of the child the likelihood of psychological harm in seeing parents, both of whom she loves, engaged in argument would be greatly reduced. It is one reason why the Apprehended Violence Order, to my mind, is of value.
I will make Orders that provide that the question of schooling should be resolved once and for all and I am satisfied that the evidence of the counsellor, herself a former school counsellor, about the value to this child of the O Primary School is most telling evidence and that it is quite clear to me that the child should remain at O and should not have a school change to B and I am of a view that it is the mother who should make that decision.
It is for these reasons that I make the orders at the commencement of this judgment.:

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 23 April 2003