Dale and Mallery

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALE & MALLERY

[2015] FCCA 167

Catchwords:
FAMILY LAW – Final parenting arrangements for child aged six years – parties have been separated for many years – parties have strained relationship with one another and communicate with difficulty – child live mainly with mother – father seeks significant and substantial time – should time be in a block each fortnight or in two periods – best interests.

Legislation:

Family Law Act 1975, ss.60CA; 60CC; 61DA; 65DAA; 65DAC; 65DAE

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Bartel & Schmucker (No.3) [2012] FamCA 1094

Applicant:

MS DALE

Respondent:

MR MALLERY

File Number:

ADC 4240 of 2009

Judgment of:

Judge Brown

Hearing date:

23 January 2015

Date of Last Submission:

23 January 2015

Delivered at:

Adelaide

Delivered on:

30 January 2015

REPRESENTATION

Counsel for the Applicant:

Ms Franklin

Solicitors for the Applicant:

Armour Allen

Counsel for the Respondent:

Mr White

Solicitors for the Respondent:

White Berman

ORDERS

That all previous Orders in relation to the child of the relationship [X] born [in] 2008 (“[X]”) are hereby discharged and dismissed.
That the parties have equal shared parental responsibility for [X] and she live with the Father during school terms as follows:-
(a)During the school term from the conclusion of school on Friday (or 6.00pm if not a school day) until the commencement of school on Monday (or 9:00am in the event of Monday not being a school day) in each alternate weekend commencing the first week of each term; and
(b)During the school term from the conclusion of school on Wednesday (or 6pm if not a school day) until the commencement of school on Friday (or 9am in the event of Friday not being a school day) each intervening week.
That [X] spend time with the Father during school holidays as follows:-
(a)In odd numbered years during the mid-year holidays from the conclusion of school on the last day of the second school term (or 6pm if not a school day) to 10:00am on the last day of the mid-term holiday;
(b)During the first and third term school holidays from the conclusion of school on the last day of the term one and three (or 6pm if not a school day) to 10:00am on the following Saturday week (eight nights).
That [X] spend time with the Mother during school holidays as follows:-
(a)In even numbered years during the mid-year holidays from the conclusion of school to the first day of the third school term.
That [X] spend time with the Father during Christmas Holidays as per paragraph 2 above, save that:-
(a)In even numbered years the Mother’s time with [X] be suspended and [X] live with the Father for a two (2) week period from 6:00pm on 29 December to 6:00pm on 12 January;
(b)In odd numbered years, the Father’s time with [X] be suspended and [X] live with the Mother for a two (2) week period from 6:00pm on 29 December to 6:00pm on 12 January;
(c)From 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and at the same times and on the same days in each alternate year thereafter PROVIDED THAT [X] shall live with the Mother from 3:00pm Christmas Eve until 3:00pm on Christmas Day in 2015 and at the same times and on the same days in each alternate year thereafter;
(d)That [X] live with the Mother from 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2016 and at the same times and on the same days in each alternate year thereafter PROVIDED THAT [X] shall live with the Father from 3:00pm Christmas Eve until 3:00pm on Christmas Day in 2016 and at the same times and on the same days in each alternate year thereafter;
(e)That [X] do live with the mother at all other times during such Christmas Holiday periods.
That on [X]’s birthday the parent with whom [X] is not otherwise spending time shall spend time with her for a five (5) hour period, the commencement and conclusion of which are to be agreed between the parties.
That if [X] is not otherwise spending time with the Father on the Father’s birthday, [X] do spend time with the Father for a four (4) hour period, the commencement and conclusion of which are to be agreed between the parties.
That if [X] is spending time with the Father on the Mother’s birthday, [X] do spend time with the Mother for a four (4) hour period, the commencement and conclusion of which are to be agreed between the parties.
That if [X] is spending time with the Mother on the Father’s Day, [X] do spend time with the Father for a four (4) hour period, the commencement and conclusion of which are to be agreed between the parties.
That if [X] is spending time with the Father on Mother’s Day, [X] do spend time with the Mother for a four (4) hour period, the commencement and conclusion of which are to be agreed between the parties.
At Easter time:-
(a)in all odd numbered years [X] shall spend time with the Father from 10:00am Good Friday until 2:00pm Easter Monday and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this sub-paragraph; and
(b)in all even numbered years [X] shall spend time with the Mother from 10:00am Good Friday until 2:00pm Easter Monday and any further time as may be agreed between the parties and that any provision for time under this Order that is inconsistent with this sub-paragraph be suspended so as to facilitate time under this paragraph.
That the said infant child [X] do live with the Mother at all times other than the times she is living with the father in accordance with paragraphs 3 to 13 hereof.
That handovers occur at [X]’s School during school terms; and handovers which do not take place at [X]’s school will occur at:-
(a)the Hungry Jack’s Restaurant, [address omitted]; or
(b)should either party change residence after the making of these Orders, at a public place of a like nature approximately mid-point between the two residences as agreed between the parties.
That the Father is to have telephone or Skype communication with [X] for not longer than 30 minutes when she is in the care of the Mother as follows and on the following conditions:-
(a)During the school term in the week after the father’s alternate weekend on Tuesday evenings between 6:30pm and 7:30pm or as otherwise agreed by the parties;
(b)During the school term in the intervening week on Monday and Wednesday nights between 6:30pm and 7:30pm or as otherwise agreed by the parties;
(c)During school holidays on Monday, Wednesday and Friday evenings between 6:30pm and 7:30pm or as otherwise agreed by the parties; and
(d)The Mother is to facilitate and encourage such telephone calls.
That the Mother is to have telephone or Skype communication with [X] for not longer than 30 minutes when she is in the care of the Father as follows and on the following conditions:-
(a)During the school term in the week of the father’s alternate weekend on Saturday evenings between 6:30pm and 7:30pm or as otherwise agreed by the parties;
(b)During the school term in the father’s intervening week, on Thursday evening between 6:30pm and 7:30pm or as otherwise agreed by the parties;
(c)During the school holidays on Saturday, Monday, Wednesday and Friday evenings between 6:30pm and 7:30pm or as otherwise agreed; and
(d)The Father is to facilitate and encourage such telephone calls.
That the parties utilise a Communication Book to be exchanged between the parties at handover and to be confined to only issues relating to [X]’s care, health, welfare, education and development and the parties shall refrain from making derogatory remarks in the Communication Book about the other party.
That each party shall forthwith inform the other of any significant illness or injury sustained by [X] whilst in their care and each party shall forthwith advise the other as soon as reasonably practicable of any medical emergency of [X] requiring hospitalisation or immediate medical treatment whilst in their respective care and each party shall be at liberty to visit [X] during any period of hospitalisation.
That the parties share and be mutually involved in decisions relating to the health of [X] including [X]’s therapist and during times [X] is living with each party, the other is to be notified:-
(a)In the case of a significant medical emergency, immediately;
(b)In the case of illness or injury that does not constitute an emergency, within two (2) hours of the injury or illness occurring;
(c)Of any medical appointments [X] is to attend and that the other party shall be informed via the Communication Book of the purpose and outcome of the said appointment; and
(d)In the event of [X] being hospitalised or kept under medical supervision at the rooms of any doctor then both parents be at liberty to visit [X] according to the usual visiting or treatment protocols of such hospital or rooms.
That in the event of either party leaving the State of South Australia with [X] that party shall notify the other party of his or her intention to so travel in writing no less than 14 days prior to the anticipated departure time and the travelling party shall provide the other party with reasonable particulars of the proposed itinerary and of details and telephone numbers at which the travelling party can be contacted whilst out of South Australia, and during such trips the travelling party shall ensure that [X] contacts the non-travelling party by telephone or Skype on two occasions per week at reasonable times.
That the parties do discuss the issue of the [X]’s schooling and that the parties do enrol [X] at such school as the parties shall agree or failing agreement as this Honourable Court shall determine.
Each party is restrained and an injunction is hereby granted restraining them and each of them from enrolling [X] at any school without the prior express written consent of the other party.
That the Father shall be at liberty to request, and receive from [X]’s school, at his expense, copies of all written communications addressed to parents including school reports, newsletters, school photographs and all other information which parents usually receive.
That the Father shall be at liberty to attend all school and extra-curricular functions and events including sports days, concerts, recitals, parent teacher interviews and other such events to which parents are usually invited irrespective of whether [X] is in his care on the particular day(s) when such events are held.
(a)UPON NOTING that both parties agree to [X] attending ballet classes and the parties agree that [X] wishes to do ballet, that the parties shall do all things reasonably possible to ensure that [X] attends her ballet and other agreed extra-curricular activities and activities that [X] wants to do, while in the care of the other party; and
(b)neither party shall enrol [X] into any other sporting or extra-curricular activity where the activity is likely to occur during the other party’s time with [X] without the parties agreeing in writing to [X]’s attendance at such activity prior to such enrolment provided further that [X] expresses an interest or desire to participate in such proposed activity.
That the parties do ensure that the administration staff of the school [X] is attending are:-
(a)Provided a copy of these Orders;
(b)Notified that when [X] is spending time with the Father pursuant to these Orders, the Father’s wife Ms Y and the paternal grandmother Ms M be included as “emergency contacts” at [X]’s school; and
(c)Notified that when [X] is otherwise living with the Mother, the Mother, the maternal grandfather Mr D, the maternal grandmother Ms A and the maternal aunt Ms D are the “emergency contacts” at [X]’s school.
That with respect to handovers, the paternal and the maternal grandparents and each parties’ respective partner and Ms D (upon her obtaining her P1 driver’s licence) shall be at liberty to attend handovers should either party be unable to attend.
That the parties be restrained and an injunction be granted restraining each of them from:-
(a)Denigrating the other or discussing each other, each other’s family members or friends in negative or derogatory terms either in the presence of [X] or allowing [X] to be present whilst anyone else is doing so;
(b)Denigrating the other party to or with any third party in the earshot or the presence of [X]; or
(c)Discussing Court proceedings, child support issues or parenting matters with [X].
That each party is restrained and injunctions are granted restraining them from removing [X] from the Commonwealth of Australia until she reaches 10 years of age.
That once [X] reaches 10 years of age, neither party may remove her from the Commonwealth of Australia without first, at least 21 days prior to the proposed date of travel:-
(a)Providing the other party with a full itinerary of the proposed period of travel;
(b)Providing the address and contact details of [X] during the proposed period of travel;
(c)Providing the other party proof that travel insurance has been arranged for [X] which includes emergency exit arrangements from any location to an English speaking country; and
That during any period of international travel, the party travelling with [X] will facilitate telephone and Skype contact between [X] and the other party on two occasions per week at reasonable times in accordance with the time zone with which [X] is in at the time.
That upon the request of either party the other party shall do all things necessary and sign all such documents to ensure that a passport and/or visa do issue for any overseas travel for [X] in a timely manner and the parties shall share equally in the costs of obtaining such passport.
That when not needed for travel, [X]’s passport is to remain in the care of the Mother and the Mother will be responsible for the replacement of and any costs for such replacement of the passport in the case of it being lost.
If the passport is lost whilst the father has possession of it, the father shall pay the costs of its replacement.
In the event that the father requires [X]’s passport for overseas travel or identification purposes, the mother shall deliver same to the father for that purpose within 7 days of such request and after it being used for that purpose the father shall return same to the mother within 7 days of the last day of its use.
The Trial dates for the final hearing of this matter before Judge Brown on 4 & 5 March 2015 be vacated.
That all applications before this Honourable Court be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4240 of 2009

MS DALE

Applicant

And

MR MALLERY

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Mr Mallery “the father” and

Ms Dale “the mother”. They are the parents of [X], who was born on [omitted] 2008.
The parties lived together between late 2007 and September 2009, when they were each in their very early twenties. It seems clear now that they were not compatible with one another.
However, for the obvious reason that they are the parents of [X], a parental relationship exists between them, which will subsist until [X] is eighteen years of age or more likely for as long as each of them live. Accordingly, it will be necessary for them to interact with one another in respect of the myriad responsibilities arising from being a parent.
Soon after the parties separated, the father commenced proceedings in this court. At the time, he had many criticisms of the mother, describing her as emotionally volatile and, at times, neglectful of [X]. It is clear from this material that he did not have a very high opinion of the mother.
At this early stage, when [X] was around fourteen months old, he sought shared care for the child. From the mother’s perspective, the parties’ separation had been very difficult. She had her own criticisms of the father, describing him as violent and controlling. She proposed a regime whereby [X] should continue to live mainly with her and spend time with her father on weekends.
On 1 December 2009, the parties agreed that [X] would live with her mother and spend alternate weekends and overnight every other Friday, in the care of her father. The rationale of this arrangement was that [X] was young and had mainly lived with her mother but needed to see her father regularly so that a relationship might grow between the two.
Following the making of this order, the parties were referred to a conference with a family consultant, Ms E to see if her advice could assist them to reach a lasting agreement in respect of how [X] was to be cared for in future.
To both parties credit, they indicated to Ms E that they wanted to develop strategies to enable them to communicate effectively, in respect of [X]. In addition, Ms E noted that both Mr Mallery and

Ms Dale listened attentively to the advice provided to them.
At this early stage, Ms E was concerned at the dynamic of the parties’ relationship, particularly given [X]’s tender years. Ms E cautioned the parties about the possible harmful consequences, for [X], of being exposed to adult conflict, which she would not be able to understand.
After a great deal of negotiation between the parties and no doubt after a great deal of thought, in April of 2010, the parties agreed to finalise arrangements for [X]’s care on the basis earlier agreed at the interim hearing stage.
Accordingly, since late 2009, [X] has spent some overnight time, with her father, each week. As such, it must be the case that [X] knows her father very well indeed and loves him very much. However, sadly, the conflict between the parties and their difficulties in communicating with one another, have not got any easier over the four or five intervening years.

The proceedings

When the parties were living together, the father was an apprentice [omitted]. Mr Mallery has now completed his apprenticeship and is employed as an [omitted]. [Employer omitted] allows Mr Mallery to work flexible hours.
There have been other important developments in Mr Mallery’s life, since 2009. He has been involved with Ms Y since early 2012. She is from Singapore. Mr Mallery married Ms Y in [omitted] of 2014.
Ms Dale is not currently re-partnered, although she has been engaged in a number of significant relationships since 2009. She is employed, as a full-time [omitted]. [X] has begun school at [B] Primary School.
Ms Y works as [omitted] in Adelaide. Her family continue to live in Singapore, but she regards Australia as her home. It seems clear that Ms Dale and Ms Y do not know one another very well. The parties’ compromised relationship provided fertile ground for suspicions and fears to grow.
Ms Dale commenced the current proceedings in April of 2014. She was frightened that Mr Mallery might remove [X] permanently from Australia and go and live in Singapore with Ms Y. She also wished orders to be made that would confer sole parental responsibility for [X], on her; and that the child should spend time, with her father, on alternate weekends from 10:00am Saturday until 5:00pm the following Sunday.
From Mr Mallery’s perspective, there was no conceivable possibility of him ever absconding with [X] to Singapore. He was also concerned at the possibility of his time with [X] being reduced. In response to the mother’s application, he sought to spend more time with [X] than was provided for by the orders of mid-2010.
In her affidavit material, Ms Dale described her relationship with

Mr Mallery as “poor”. She said that the parties rarely spoke to one another and “rarely agreed” about anything to do with [X]. She was of the view that this situation was unlikely ever to change.

Mr Mallery confirmed the mother’s account of the parties’ parenting relationship. He indicated that he and Ms Dale had attempted unsuccessfully to resolve issues through mediation. There had been intractable disputes about whether [X] could attend Mr Mallery’s wedding, with Ms Y, and which primary school she should attend.
Ms Dale reported, in her affidavit of 4 April 2014, that [X] had developed some serious medical issues relating to her bowel, which resulted in her soiling herself. This unfortunate situation had resulted in [X] being teased at school. [X]’s doctors were concerned that some of her medical issues might have an emotional trigger.
In his answering affidavit material, Mr Mallery reiterated his historical concerns about Ms Dale’s parenting. In addition, he was critical of her for not keeping him informed about important issues to do with [X]’s health and education. It was the import of his affidavit that he believed that the mother’s conduct might be fuelling [X]’s anxieties.
The parties’ competing applications first returned to court on 3 June 2014. At this point, the parties were able to agree on a wide range of measures to update the 2010 orders, particularly to reflect the fact that [X] was now at primary school. They agreed on the following:
·To use a communication book;
·To authorise Mr Mallery to attend at [X]’s school and extracurricular activities and to get reports and other information from her school;
·Not to abuse or denigrate the other in the presence or the hearing of [X] or discuss court proceedings and child support issues with her;
·To inform the other of any medical emergency befalling [X] and put in place arrangements to allow each of them to speak with any of her doctors;
·Ms Y and her paternal grandmother were included as emergency contacts at [X]’s school;
·The maternal grandparents were authorised to attend handovers in place of Ms Dale;
·Orders were made for school holidays, including arrangements for the exchange of holiday itineraries.
These orders recognised that the parties continued to have significant communication problems, but would each remain closely involved with [X], and, as such, needed to have access to a formal process to exchange information about her.
Sadly, at this stage, both Mr Mallery and Ms Dale indicate that their relationship with one another is stuck and unlikely to improve to any great degree in the foreseeable future. However, notwithstanding these very significant problems, the parties were able to agree on an extension of Mr Mallery’s fortnightly time with [X] during the school year.
The parties agreed that in one week of each fortnight, [X] would spend from after school on Friday until the commencement of school the following Monday (or Tuesday if the Monday was a public holiday) and in the other week of each fortnight from after school on Tuesday until the commencement of school the following Friday. Essentially, this was an extension of one night per fortnight from the 2010 orders. The arrangement envisaged [X] spending some time each week with her father.
Following this significant agreement, many issues nonetheless remained unresolved between the parties. These issues included the father’s desire to travel with [X] to Singapore; his concerns that

Ms Dale made unilateral decisions about issues to do with [X]’s education and extracurricular activities; but particularly his desire to extend his fortnightly time with [X].
Against this background, the parties were referred to a further child dispute conference, on 15 July 2014 – this time with family consultant Dr B. Dr B noted [X]’s history of soiling and wetting. Whilst she acknowledged that the soiling had been attributed to a bowel blockage, this did not necessarily rule out anxiety being the underlying cause.
Dr B also noted that although the parties acknowledged that they needed to be “on the same page” in relation to [X]’s health and education, they routinely took opposing views to one another. In these circumstances, Dr B was concerned about the parties’ poor paternal communication and [X]’s ability to manage this and other stressors in her life.
The case returned to court on 29 July 2014. With the assistance of their lawyers, the parties consolidated earlier areas of agreement between them. They were also able to agree on other issues relating to time at Christmas and on [X]’s birthday and other special occasions. Formal orders were put in place in respect of [X] communicating regularly with her absent parent via the telephone or skype.
However, notwithstanding these major areas of agreement, the issue of equal time remained in the wings. In these circumstances and in line with one of Dr B’s recommendations, it was ordered that a family assessment report be prepared by Ms N. The substantial burden of the report was to be borne by Mr Mallery, but Ms Dale was to contribute the sum of $500.00.
From both parties’ perspectives, the cost of this family report was heavy. It is the usual practice of the court to only order such reports in conjunction with a final hearing. In these circumstances, the case was allocated a final hearing date in March, but the parties were to return to court, once Ms N’s report was to hand, to see if her recommendations would assist the parties to reach a final agreement.
As directed, Ms N completed her report on 31 October 2014. At first blush, her report is a thoughtful and comprehensive document, which involved interviews with each of the parties and Ms Y and an observation of [X] with each of her parents. [X] also had a play session with Ms N.
Ms N reported that the parties lived in reasonable proximity to one another in suburban Adelaide – the mother in [omitted], near [X]’s school in [B]; the father in Adelaide itself. She noted the significant level of conflict between the parties and [X]’s history of soiling and wetting herself. Fortunately, it was noted by the parties that these problems had resolved and [X] had not soiled herself for some months.
Ms N further reported that [X] had begun to attend a psychologist,

Ms H, since September of 2014, via a GP’s mental health plan.

Ms Dale reported that [X] remained an anxious child, who did not “cope with change”.
Mr Mallery reiterated his concerns to Ms N that the mother did not keep him informed about significant issues to do with [X]’s care. He complained that he had not been allowed to take part in the various sessions between [X] and Ms H.
To her credit, Ms Dale indicated to Ms N that [X] had adapted well to the extra night with her father ordered by the court in mid-2014. However, it remained Ms Dale’s position that [X] had difficulties transitioning between her parents respective households and took some time to settle down.
Mr Mallery did not share this perspective and reported his view, to

Ms N, that [X] easily transitioned between the two homes and loves spending time with him and Ms Y.
At the time of Ms N’s report, the focus of the dispute had moved from an equal division of [X]’s time, with each of her parents, to

Mr Mallery’s desire to have [X], in his care, five nights per fortnight.
Ms Dale’s preference was for things to remain as they were, at four nights per fortnight. Issues also remained regarding the possibility of [X] travelling to Singapore, particularly the appropriate age for her to engage in overseas travel.
Ms N noted no concerns in [X]’s engagement with either of her parents. She was described as a happy, well-adjusted and thriving child. It was clear to Ms N that [X] was a much loved and cherished child.
However, one thing arising from Ms N’s report should be strongly emphasised, to the parties. It is that [X] said she felt “sad” because her parents continued not being able to get along with one another. In my view, it is a very good thing that [X] is doing so well. However, because of the problems between her parents, she remains a vulnerable child.
In her report, Ms N provided the following evaluation:
“At the conclusion of the Family Assessment it was clear both parties and Ms Y loved and cared for [X] and had successfully built a strong and secure primary attachment with [X]. [X] presented as a delightful, happy and well-adjusted 6-year-old child who was thriving from the benefit of these loving and secure attachments. However, of concern was the limited communication shared between the parties and the ongoing underlying level of conflict. It was evident that despite separation being some years ago, both parties continued to struggle with trusting each other, and both were yet to find successful ways of communicating and negotiating on children’s issues.
…
Both parties were in support of [X] remaining in her mother’s primary care, however they were in dispute over one night a fortnight, with the father wanting this additional time with [X]. It was undisputed that [X] was generally managing the current time spent with her father without major concern, however Ms Dale did not believe [X] wanted or would manage any additional time until at least in her high school years. It was the opinion of the Family Consultant that whilst it was understandable Ms Dale had some concerns about increasing [X]’s time away from her at this age that this was without basis. It was the opinion of the Family Consultant that [X] was not fearful of her father, but rather she had a secure and loving attachment with both Mr Mallery and Ms Y, and that spending an additional night (this being five nights a fortnight in her father’s care) would be manageable in the very near future. It was considered that five nights a fortnight in her father’s care would allow [X] to maintain her primary attachment base with her mother but also spend adequate time in her father’s care to maintain and develop that meaningful attachment, as well as allow Mr Mallery to play a significant role in her schooling and future extra-curricular activities. There were no concerns for [X]’s wellbeing in her father’s care, and nor were there concerns if she was to be left in Ms Y’s care from time to time when Mr Mallery was required to work. Both presented as child-focused, caring and capable adults who had a clear and accurate understanding of [X]’s emotional and developmental wellbeing and personal characteristics.”
As a consequence of this evaluation, amongst other things, Ms N recommended that the parties share parental responsibility for [X] and from the commencement of term one 2015, her time with her father increased by one night, in the intervening week, so that [X] would spend time, with her father, from Wednesday after school until the commencement of school the following Friday and the existing arrangement, in respect of weekends, continue.

The current positions of the parties

In anticipation of the possible final hearing, scheduled for March of 2015, the case returned to court on 12 January 2015. The parties had had several weeks to consider Ms N’s report, which I had also closely read.
On 12 January, I was blunt with the parties and their lawyers. It was clear to me that neither of them could afford to have a final hearing, regarding the various issues as identified by Ms N. Neither party had qualified for legal aid but nor could either of them be regarded as a wealthy person.
In addition, I was concerned that a final hearing, which would inevitably concentrate on each party’s perception of the shortcomings of the other, would only cause further deterioration to the parties’ already deeply compromised parenting relationship. Such an outcome clearly would do little to reduce the tensions surrounding [X].
The parties agreed to go away and think about what I had said. In the meantime, their lawyers agreed to continue to have a dialogue with one another and see what common ground could emerge, prior to the case coming back to court on 23 January.
To the parties’ very great credit, on 23 January 2015, they were able to hand up to the court a comprehensive document of some thirty-six orders, which dealt with nearly all of the issues surrounding [X]’s care for the foreseeable future.
This included a concession by Ms Dale that she would agree to Ms N’s recommendation for an extension of [X]’s time, with her father, to five nights per fortnight.
One significant issue remained incapable of resolution. It concerns how those five days per fortnight should be configured. It is Ms Dale’s preference that the five days occur in one discreet block.
On the other hand, it is Mr Mallery’s preference that the court make orders in the same terms as recommended by Ms N, namely that the time occur in two blocks of three nights and two nights respectively per fortnight.
When parents disagree about an issue to do with their child, just as with other citizens in dispute about some other type of issue, it is the function of the court to resolve these disputes, to prevent the parties concerned from resolving their issues, through other means, which may fall outside the law.
In an ordered society, it is necessary for there to be such formal mechanisms to resolve the inevitable disagreements, which arise between human beings. Parents are no exception. However, in performing this function, the court needs to be mindful of the vulnerabilities of any children concerned, who although not formal parties to the case arising are likely to be deeply affected by its outcome.
I accept that the parties have done their level best to resolve this issue, which at first blush may appear trivial to some in the community. Accordingly, it falls to me to make a determination. I have already indicated to both Ms Dale and Mr Mallery that this prospect causes me some level of perturbation.
I have no desire to create a sense that one party has won the case and another has lost it. However, given that I must resolve the impasse arising between Ms Dale and Mr Mallery, to some extent this is inevitable.
My function is not just to make a decision. It is more complicated than that. Notwithstanding the narrowness of the dispute between the parties, I must remain focussed on [X]’s best interests and decide what outcome, I think, will best serve her interests. At the same time, I must ensure a fair hearing, for each of the parties concerned and give both Mr Mallery and Ms Dale the sense that each of them has been heard by the court and been given an opportunity to present their cases.
It is also important that the resources of the court, and so the community as a whole, should not be wasted in determining matters of small moment or that the parties themselves be put to inordinate expense to resolve disputes arising between them, which fall into a comparatively small compass. There must be a balance between these very considerations.
For all these reasons, on 23 January 2015, I decided, rather than allow the matter to go to final hearing in March, to give each of the parties fifteen minutes or so, then and there, to indicate to me, in their own words, why their position was to be preferred and why I should make the orders which he or she sought respectively. I also enabled each of the parties to be briefly cross-examined. After this process, I indicated that I would make a decision. This is that decision.

The evidence

Both Ms Dale and Mr Mallery presented as sensible people, who each cared deeply about [X]. In the old cliché, the parenting aspirations, which Ms Dale and Mr Mallery hold in common, for [X], are far more numerous and important than the issues which currently divide them.
They both love [X] and both want the best for her, both now and forever. However as with many things to do with [X], they each have a different perspective on what is likely to be best for her and for each of them. Necessarily, since their difficult and painful separation, they find they have less and less in common.
In this context, both Mr Mallery and Ms Dale can muster powerful arguments in support of their preferred outcome. Accordingly, I am satisfied that neither party is being capricious or difficult for the sake of it. They are just different people, with different opinions and different experiences and perspectives.
Ms Dale’s case focusses on the fact that [X] suffers anxiety and how this can be alleviated. It is her view that five consecutive days, with her father, will provide more structure for [X] and be less destabilising for her.
It is Ms Dale’s view that the three/two day per fortnight regime represents too much chopping and changing for [X]. In addition, she believes that a longer period, each fortnight, will enable [X] to have a deeper relationship with her father and will give more time for the two to discuss personal matters together.
It is Mr Mallery’s view that it will be very unsettling, for [X], if she does not continue to see him each week. In support of his position, he points to the fact that, since the orders of 2010, he has seen [X], on overnight occasions, each week. He believes that [X] will be upset if she goes for up to nine days without being able to physically touch base with him.
In his evidence to the court, Mr Mallery reiterated what he told Ms N, namely that [X] had coped well with the change to four nights per fortnight and was likely to adapt to the further night agreed upon by her parents.
Mr Mallery confirmed that [X] was a child who “struggles with change”. In his opinion, it would be a bigger change, for [X], if she did not see her father each week. So the parties have a different view as to which outcome is likely to represent the bigger change for [X] and so be more unsettling for her.
In his evidence, Mr Mallery gave further evidence regarding his working hours. He works a ten hour day, but only on eight days per fortnight. Accordingly, he would be able to structure his days off to coincide with days when [X] is in his care. He would be able to deliver and collect [X] from school and is keen to engage with her teachers.
Overall, Mr Mallery presented as a thoughtful but somewhat intense parent. Certainly, there can be no suggestion that he is disinterested in anything to do with [X]. He remains aggrieved at his perception that Ms Dale has not kept him fully informed about [X]’s various appointments with Ms H.
Ms Dale struck me as a highly protective parent. To her credit, it seemed to me, that she has made many concessions since she re-commenced the case last year. Her employment does not provide the flexibility of hours available to Mr Mallery. Accordingly, she relies on out of hours school care, for [X], on several afternoons each week.
To Ms N, the parties indicated that they had different parenting styles. The father sees himself as a more structured and perhaps formal parent. The mother is less formal and more permissive. However, neither expressly said that the other was either too soft or too excessive in their approach to discipline.

The legal principles to be applied

In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However, these considerations still need to be considered within the overall framework of Part VII, particularly its underlying principles and the legislatively mandated objects or aspirations of the Act. These are set out in section 60B and are illuminative of the dilemma which this case throws up.
These speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them, regardless of the nature or duration of the relationship between their parents.
Children also have a right to be safe and to be protected from coming to harm, both in a physical and a psychological, as a consequence of being exposed to neglect, abuse or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[1]
[1] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[2] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[3]
[2] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[3] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
In this case, the parties agree that they should have equal parental responsibility for [X]. This is not an empty statement but carries heavy responsibilities and obligations, on both the mother and the father.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In Bartel & Schmucker (No.3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [4]
[4] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
In this case, as previously indicated, the parties agree that they should hold equal shared parental responsibility for [X]. They have also agreed, it would seem to me, regardless of how the exact periods of time are calibrated, that Mr Mallery should have substantial and significant time with [X]. It is not appropriate that I look behind this agreement, which I am satisfied is likely to be in [X]’s best interests.
However, in this context, I think it important that I outline the relevant factors, appearing in the legislation, which go to whether it is reasonably practicable for the court to make an order either for equal time or substantial and significant time.
These issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In this particular case, although the parties live fairly close together, it is clearly the case that they have great deficits in their capacity to communicate with one another and solve parenting problems consensually. The parties need to think very carefully about these issues in future. Their relationship, as parents, is not one that lends itself naturally to a shared parenting regime, either in child developmental terms or within the legislative context.

Consideration

Thankfully, this is not a case which focusses on issues to do with abuse, neglect or family violence. [X] is a much loved child and although the parties competitive relationship with one another causes [X] some psychological distress, neither party would willingly do anything to expose [X] to harm.
In addition, regardless of how [X]’s time is formulated in future, I am satisfied that she will continue to have a meaningful level of relationship with both her father and mother.
I accept Ms N’s assessment is that [X] is thriving, under the current regime, which sees her spending significant periods of time regularly with both her mother and father. In my view, it is important this regime continues, as indeed the parties themselves have agreed.
I do not regard this as a trivial dispute. As indicated earlier, I accept that each party has a very valid view for adopting the position which he or she has done. At the end of the day, I must make some sort of assessment of the quality of relationship [X] has with each of her parties and try to assess the possible consequences of changing arrangements for her care, including the possible consequences of being separated from her parents [see section 60CC(3) (b) & (d)].
In must also bear in mind [X]’s age and level of maturity and other of her characteristics as relevant [see section 60CC(3)(g)]. [X] is a child of six and a half years of age. She has not been without her challenges in life, particularly so far as her blocked bowel has been concerned. Her problems in this regard have led to her being teased at school.
[X] has lots of reasons, in her life, to cause her to be anxious. She is, on the evidence of both of her parents, a child who does not cope well with change. To my mind, in all these circumstances, the court should do its best to minimise the effects of change on [X] and so reduce the potential for her to become anxious.
[X] clearly knows her father and Ms Y very well indeed. She has been seeing her dad, at least overnight once a week since she was a very little girl. In my view, this is a most significant factor. The evidence also indicates that she has adapted well to the extra night, which was agreed upon mid last year. It is to Ms Dale’s credit that she acknowledges this fact.
Given [X]’s age, it seems probable to me that she does not, as yet, have a clearly defined sense of time. From her perspective, a period of nine days is likely to be a very long period of time indeed, particularly within her experience of life to date, which has seen her spend time with her father every few days or so.
I accept that the reality of [X]’s life, up to this stage, is that she has engaged with her father on a weekly basis. On this basis, I accept that the more dramatic change, for [X], is likely to arise if the option preferred by Ms Dale is adopted by the court, as it will mean that [X] will potentially go for up to nine days without physically being able to interact with her father.
Given [X]’s particular vulnerabilities, the court needs to do its best to minimise the emotional effects of change on [X]. In addition, it seems to me that it will add to [X]’s sense that her father has a meaningful level of involvement in her day to day life, if she is able to see her father weekly rather than fortnightly.
Mr Mallery gave evidence that he involves himself with [X]’s homework, on the school nights during which she is in his care. He checks her spelling and reads with her. This weekly level of involvement is likely to add a sense of immediacy and interconnection to the relationship between father and child.
I would expect that [X] shares details of her life at school and with her friends with her father, when she sees him. Things in her life will rapidly come in and out of vogue. What is important to her on Tuesday will have receded by Thursday and so on and so forth.
Again, in order for child to feel connected to father, it seem better that the periods of substantial and significant time be spread over the fortnight rather than concentrated in a longer block. The former arrangement seems to me to be more conducive to fostering a sense of intimacy between father and child and so add more meaning to the relationship.
I concede that it is finely balanced decision and that other minds may well have another view of the circumstances and perhaps conclude that a concentration of time, as proposed by the mother, would be more conducive to protecting [X] from the endemic conflict between her parents, which is likely to be most manifest at handovers. This is not an argument, which can easily be dismissed.
However, for the reasons set out above, I have come to the conclusion that the father’s proposal is the preferable option at this stage and the one best calculated to serve [X]’s interests. In reaching this conclusion, I cast no aspersions on the mother’s bona fides. However, the dispute between the parties required me to make a decision. In these circumstances, it is inevitable that one party will leave the proceedings feeling hard done by.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment. These orders include the vast majority of orders on which the parties have agreed.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 30 January 2015

[2015] FCCA 167

30 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies