Delaney and Delaney - [2008] FMCAfam 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DELANEY & DELANEY

[2008] FMCAfam 674

FAMILY LAW – Parenting – where child has expressed a strong view to live with father – where father has formed alliance with child against mother – where father has sought to alienate child from mother – where father asserts child is afraid of mother – where father motivated by determination to punish mother and to remove child from her care – where court expert urges court to extricate child from "emotionally toxic environment" – where mother is a sensible, caring and responsible parent – where, given the child's age and father's influence over him, court reluctantly concludes that parties should have equal shared parental responsibility – where court reluctantly concludes that shared care is only current viable alternative.

Family Law Act 1975 (Cth)

Goode (2006) FLC 93-286
Hungerford & Tank (2007) FamCA 637
M & S (2006) FamCA 1408
McLeay (1996) FLC 92-667
Mills & Watson (2008) FMCAfam 2
Pender & Haywood [2007] FamCA 1526
PST & CPR (2006) FMCAfam 36
Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334
Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321
Taylor & Barker (2007) FamCA 1246

Applicant:

MS DELANEY

Respondent:

MR DELANEY

File Number:

MLM 9679 of 2004

Judgment of:

Walters FM

Hearing date:

18 July 2007

Date of Last Submission:

18 July 2007

Delivered at:

Melbourne

Delivered on:

25 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr Puckey

Solicitors for the Applicant:

Morrison & Sawers

Counsel for the Respondent:

Mr Hannan

Solicitors for the Respondent:

Dawes & Vary Pty

Counsel for the Independent Children’s Lawyer.

Mr Nicholson

Solicitors for the Independent Children’s Lawyer:

Suzanna Sheed & Associates, Shepparton

ORDERS

IT IS ORDERED THAT:

All current parenting Orders be discharged.
The husband and the wife have equal shared parental responsibility for the child [M] born in 1995.
The child live with the wife from immediately after school Monday
28 July 2008 to immediately after school Friday 1 August 2008.
The child live with the husband from immediately after school Friday 25 July 2008 until immediately after school Monday 28 July 2008.
The child live with the husband from immediately after school Friday

1 August 2008until immediately before school Friday 8 August 2008, and each alternate week thereafter.
The child live with the wife from immediately after school Friday
8 August 2008 until immediately before school Friday 15 August 2009, and each alternate week thereafter.
For the purpose of the child’s changeover from one party to the other pursuant to these orders:
(a)the husband or his nominee shall collect the child from and return the child to school at the commencement and conclusion of each period during which the child is to live with the husband, and where such period commences and/or concludes on a school day;
(b)the wife or her nominee shall collect the child from and return the child to school at the commencement and conclusion of each period during which the child is to live with the wife, and where such period commences and/or concludes on a school day; and
(c)the husband or his nominee shall collect the child from and return the child to the wife’s residence at all other times.
The wife do:
(a)keep the husband advised at all times of the current residential address and landline telephone number of the child;
(b)advise the husband immediately in the event that the child suffers any serious illness or injury;
(c)authorise any medial practitioner upon whom the child may attend from time to time, to communicate with the husband regarding the child’s medical condition and/or requirements;
(d)authorise all schools which the child may attend from time to time to:
(i)provide to the husband, at the expense of the husband, copies of all school reports, school notices and school photographs in relation to the child;
(ii)communicate with the husband, either by telephone, in writing or by personal attendance, regarding the child’s progress at his school; and
(iii)permit the husband to attend all school functions to which parents are normally invited, save as provided for in paragraph 11(g) below.
The wife, her servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the husband or any member of his household in the presence or hearing of the child, and from permitting any other person so to do:
(b)discussing these proceedings in the presence or hearing of the child; and
(c)showing the child any documents filed in these proceedings.
The husband do:
(a)keep the wife advised at all times of the current residential address and landline telephone number of the child;
(b)advise the wife immediately in the event that the child suffers any serious illness or injury;
(c)authorise any medical practitioner upon whom the child may attend from time to time to communicate with the wife regarding the child’s medical condition and/or requirements; and
(d)advise the wife of any proposed interstate holiday travel with the child, and provide a contact number where the child can be reached in the event of emergency.
The husband, his servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the wife or any member of her household in the presence or hearing of the child, and from permitting any other person so to do;
(b)discussing these proceedings in the presence or hearing of the child;
(c)telephoning the wife, save for an emergency concerning the child;
(d)attending at the child’s school, save to attend all school functions to which parents are normally invited; and
(e)showing the child any documents filed in these proceedings;
and whilst the child is in the wife’s care pursuant to these Orders, the husband, his servants and agents be and are hereby further restrained by injunction from:
(f)attending at the wife’s premises, or within 200 metres thereof, save as provided for in paragraph 7(c) above;
(g)attending at the child’s school or within 200 metres thereof;
(h)attending any sporting activity in which the child is currently engaged, or within 200 metres thereof; and
(i)contacting or attempting to contact or communicate with the child by any means.
The husband, the wife and the independent children’s lawyer shall each be at liberty to provide a copy of these Orders to any one or more of the following:
(a)the principal or delegate of the Principal of the school attended from time to time by the child; and
(b)any medical practitioner and/or allied health professional attending upon the child.
A Recovery Order be prepared and do remain on the Court file, and if issued do authorise/direct the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child and deliver the child to the wife at such place as the wife and the person affecting such recovery agree to be appropriate; and
(b)to stop and search any vehicles , vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
Save that the execution of such order shall be stayed pending further order of Walters FM, or another Federal Magistrate of the Federal Magistrates Court at Melbourne in the absence of Walters FM.
The wife have liberty to apply to Walters FM (or to another Federal Magistrate of the Federal Magistrates Court at Melbourne in the event of Walters FM’s absence or unavailability) in Chambers ─ on short notice by way of telephone mention ─ for the execution of the Recovery Order referred to herein.
Upon the husband or the wife giving the other a minimum of one month’s written notice of their intention to exercise holiday time with the child, each party may change one week of the time the child is to spend with the other parent during the Christmas Holidays pursuant to paragraphs 5 & 6 herein, to enable both parents to spend two consecutive weeks with the child.
The child is to spend additional time with the wife as follows:
(a)from 5.00 p.m. 24 December 2008 to 3.00 p.m. 25 December 2008 and each alternate year thereafter;
(b)from 3.00 p.m. 25 December 2009 to 5.00 p.m. 26 December 2009 and each alternate year thereafter; and
(c)in the event that the child is not already living with the wife on the relevant occasion, for three hours on the child’s birthday, the mother’s birthday and Mother’s Day.
The child is to spend additional time with the husband as follows:
(a)from 3.00 p.m. 25 December 2008 to 3.00 p.m. 26 December 2009 and each alternate year thereafter;
(b)from 5.00 p.m. 24 December 2009 to 3.00 p.m. 25 December 2009 and each alternate year thereafter; and
(c)in the event that the child is not already living with the husband on the relevant occasion, for three hours on the child’s birthday, the father’s birthday and Father’s Day.
The appointment of the independent children’s lawyer be discharged.
The husband do pay the wife’s costs fixed in the sum of $8,000.00 – such costs to be paid from the funds available.
All extant applications otherwise be dismissed.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) & 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9679 of 2004

MS DELANEY

Applicant

And

MR DELANEY

Respondent

REASONS FOR JUDGMENT

Introduction

[M] is soon to turn 13. His parents, who both live in [X] (a country town in northern Victoria), cannot agree upon his living arrangements.
[M]'s father wants [M] to live with him, and [M]'s mother wants him to live with her.
[M]'s parents married in 1988 and separated in 2002. He initially lived with his mother after the separation, but began living with his father in July 2006. Between 2002 and July 2006, the parents twice agreed to the making of orders pursuant to which [M] was to live with the wife. Those orders were made in April 2003 and October 2005.
[M] is the wife's only child. The husband has other children, but they are much older than [M] and they do not live with the husband. Both parents love [M] very much.
The incident which saw [M] cease living with the wife and commence living with the husband in July 2006 was a very minor event. [M] misbehaved when he was with his mother and she disciplined him in a perfectly appropriate manner. He then ran away to his father, who refused to return him (after concocting a story to support that refusal). The husband should have returned [M] to the wife immediately.
For a period leading up to the incident in July 2006, and afterwards, the husband (who appears to have a very low opinion of the wife) forged a form of alliance with [M] against the wife. In simple terms, the husband took steps to turn [M] against his mother. Unfortunately, he succeeded to a significant degree.
As a result of the husband's negative influence upon him, [M] began to view his mother in a very poor light, and to treat her with a lack of respect – whilst at the same time forming an unrealistic and idealised view of his father. A report writer who saw [M] and his parents in September 2005 described the husband and [M] as "standing united in a righteous effort to protect [M] from his mother's poor parenting". The same report writer described the husband as feeling "righteous and triumphant in his personal and financial fight against the wife" as a result of having persuaded [M] to take his side.
During these proceedings, the husband saw fit to attack almost every aspect of the wife's parenting capacity and lifestyle. I have reached the conclusion, however, that she is a good mother, and that none of the husband's serious criticisms should be accepted. She is a sensible, caring and responsible parent.
I have made some very strong findings about the husband, who was one of the least impressive witnesses that I have ever encountered. Relevantly, I have concluded that, although the husband tried to give the impression that much of his behaviour was motivated by an earnest desire to protect [M] from the supposedly dire consequences of the wife's appalling (in the husband's eyes) lifestyle, the reality is that his actions reflect nothing more than an almost obsessive determination to punish the wife, to remove [M] from her care and to upset the wife as much as possible in the process.
I have also concluded that it is not in [M]'s best interests to remain living principally with husband. At the end of the trial, I put in place an arrangement whereby [M] was to spend equal time with his parents.

I have now decided that ─ subject to a number of qualifications ─ the equal time arrangement should continue.
With some misgivings, I have also decided that the parties should retain equal shared parental responsibility for [M].
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the various issues in dispute between the parties elsewhere in these Reasons.

Background and Overview

The husband was born in 1958 and is now 50. The wife was born in 1970 and is now 38. They commenced cohabitation in or about July 1986 (when the wife was only 15 or 16, and the husband was 27 or 28) ─ although it appears that the wife was 14 when she first met the husband. She used to baby-sit for his two young children.
The parties married in 1988 and separated on a final basis on

29 October 2002
.
[M], who is the only child of the parties’ marriage, was born in 1995. He is now aged 12 (nearly 13).
The husband has two daughters from a previous relationship. Both are aged in their mid-twenties and live independently.
The wife was [M]’s primary caregiver during the parties’ relationship. She attended to all his day to day needs while the husband was engaged in employment. Because the husband was a [occupation omitted], he was often away from the home for significant periods of time. When the husband was home, he assisted the wife with [M]'s care, but the wife remained the primary caregiver.
There were a number of incidents of family violence during the parties’ relationship, particularly towards its end. For example:
a)In September 2002, the husband threatened to strangle the wife with an electrical cord. He was holding the cord at the time, and was shaking and agitated. [M] was present when the threat was made, and was distressed.
b)In October 2002 (shortly before separation) the husband punched the wife in the arm. As a result of the blow, the wife suffered a large, painful bruise.
c)On 28 October 2002, the husband threatened to hit the wife with a champagne bottle.
d)On 29 October 2002, the husband slapped the wife's face and kicked her. He also chased her while holding her dressing gown strap and attempting to strangle her with it. When he caught her, he put the strap around her throat. He then began to strangle her with his hands. The police were called. When they attended, they advised the wife to leave the property and stay elsewhere ─ which she did. As a result of this incident, the wife applied for an intervention order, to which the husband consented on a "without admissions" basis.
After the 29 October 2002 incident, the wife stayed with her parents for approximately three weeks. Thereafter, and having obtained the intervention order, she returned to live in the former matrimonial home. She changed the locks in the house on 18 November 2002.
The husband continued to attend at the property, in spite of the intervention order. Occasionally, and having obtained a key for the new locks, he would attend the property late at night.
Between November 2002 and early January 2003, the parties attended counselling at Relationships Australia, with a view to possible reconciliation.
On 8 January 2003, the husband assaulted the wife at her parents’ home. He threatened to break her neck. Both [M] and the wife's mother were present.
On 9 January 2003, and as a result of the incident described in the preceding paragraph, the wife went to the police station to make a statement regarding the events of the previous day. The husband arrived at the police station, was abusive towards the wife and threatened to hang himself in front of her. With the assistance of the police, the wife later left the former matrimonial home. She stayed at a "safe house" for approximately one month. Thereafter, she returned to the former matrimonial home.
Upon her return to the former matrimonial home in early February 2003, the wife found that the husband had "filled up the bath with (her) make up and clothes".
On 4 April 2003, orders were made, by consent, in the State Magistrates Court in [S]. The orders provided for [M] to live with the wife, and for her to be responsible for his day to day care, welfare and development. The orders also provided for the husband to spend time with [M] for two out of four weekends and for half of all school holidays (together with certain other occasions).
In August 2003, and as a result of being in constant fear of the husband, the wife again left the former matrimonial home and commenced living with her parents. [M] came with her.
In September 2003, the wife obtained rental accommodation in [X].
On 17 November 2004, the wife commenced proceedings in this court, seeking orders in relation to property settlement.
On 27 June 2005, the husband filed a response and supporting material. In addition to orders relating to property settlement, he sought orders to the effect that the previous parenting orders (made in April 2003) be discharged and that [M] live with him. He also sought orders to the effect that the parties have joint responsibility for [M]'s long-term care, welfare and development, that the husband have sole responsibility for [M]'s day to day care, welfare and development and that the wife have contact with [M] on each alternate weekend and for half of all school holidays (together with other, specified occasions).
On 1 August 2005, I made procedural orders relating to the applications then before the court. Among other things, I ordered that a family report be prepared.
On 6 September 2005, Mr Roman Jansen interviewed the parties and [M]. Mr Jansen's report is dated 29 September 2005.
On 26 October 2005, Federal Magistrate O'Dwyer made final orders, by consent, in relation to parenting issues and property settlement.

In broad terms, the more substantive of the orders were as follows:
a)[M] was to live with the wife, and she was to be responsible for decisions regarding his day to day care, welfare and development;
b)the parties were to retain joint responsibility for decisions regarding [M]'s long-term care, welfare and development;
c)the husband was to spend time with [M] on each alternate weekend, for half of all school holidays and on certain specified occasions;
d)each of the parties was to attend an appropriate post separation parenting course;
e)the contact arrangements were to be supervised for a period of one year pursuant to the provisions of section 65L of the Family Law Act, and such supervision was to be reportable;
f)the former matrimonial home was to be sold, and the net proceeds were to be divided on the basis of 65% to the wife and 35% (less $246) to the husband;
g)the husband was to have the right to occupy the former matrimonial home pending sale, on the basis that he pay the mortgage payments and other outgoings relating to the property; and
h)each party was to otherwise retain the property in his/her possession.

A number of other consent orders were made on 26 October 2005, most of which were mechanical or procedural.
On 6 July 2006, the wife and [M] had a disagreement, following which [M] went to the husband's house. The wife described the events of that day as follows:[1]
39. … [M] had asked for $20 to take with him on Friday when he went to the trots with his paternal grandfather. I told [M] that I would speak to him about this on Friday. On 6 July 2006, I realised that the $20 was missing out of the $30 I had left on the kitchen bench the previous night. I asked [M] whether he took this money from the bench when he came home from school. [M] insisted that he did not take the money (but) I subsequently found it in [M]'s school bag. I was very upset and disappointed that [M] had stolen from me and lied about it so I decided to punish him by taking away one of his privileges. I decided to ban him from using the Internet for a short period of time. After telling [M] that he was not to use the Internet, [M] and his friend went to use the Internet. I told [M] that he was not allowed to use the Internet and that I had cut it off as punishment for his actions. [M] was annoyed with me for doing this (but) I thought it was important that he understand that there are consequences for bad behaviour. Following this, [M] and his friend went outside. … At approximately 4 15 p.m., I went … to check on [M] and his friend. I … could not find them anywhere. I began to worry so I drove around looking for them. I went to various different places in [X] (but) I could not find [M] or his friend. I drove for about 30 minutes before I phoned (the friend’s) father. (He was) also not aware of the children's whereabouts.
40. Approximately 30 minutes later, (the friend's father) phoned me and advised me that his son was home and that [M] had gone to the husband's home. The husband did not telephone me to advise me that [M] had arrived at his home. … I tried to organise for [M] to be returned to my care (but) the husband refused to return (him). … The husband was aware (that [M] had run away because I had punished him, but) he did not support me in punishing [M]. Instead, the husband allowed [M] to continue living with him.
[1] See paragraphs 39 and 40 of the wife's affidavit
On 13 July 2006, the wife filed an application for a recovery order in the State Magistrates Court in [S]. On the following day (14 July 2006), Magistrate Wilson ordered that the application be adjourned to

4 August 2006
and that, in the interim, [M] live with the husband "pursuant to his wishes" and spend time with the wife "pursuant to his wishes". Magistrate Wilson also ordered that the parties attend upon David Jones, Psychologist on 20 July 2006 "for the purposes of ascertaining any issues the child may have".
On 20 July 2006, the parties saw Mr Jones. Mr Jones also interviewed [M]. His report is dated 28 July 2006.
On 27 July 2006, the husband filed an application for divorce. In the application, the husband recorded that "the wife supervises the child when he is not at school" and that "the husband has contact three days per fortnight".
On 31 July 2006, the husband filed a response to the wife's application for a recovery order. He sought orders to the effect that [M] live with him and spend time with the wife "as agreed".
On 4 August 2006, interim orders were made ─ by consent ─ in the State Magistrates Court at [S]. In general terms, the orders provided for the parties to have equal shared parental responsibility for [M], and for [M] to live with the husband. The orders also provided for [M] to spend time with the wife on each alternate weekend (from after-school on Friday to before school on Monday) and on each alternate Tuesday night (from after-school on Tuesday to before school on Wednesday). In addition, [M] was to spend one half of all school holidays with the wife. The orders also stated that the wife could communicate with [M] by telephone at all reasonable times. Finally, the orders provided for [M] and the wife to attend upon Ms H (a family therapist), and for the proceedings to otherwise be transferred to the Federal Magistrates Court.
On 18 August 2006, the wife filed an amended application, in which she sought, in effect, to enforce the property settlement orders made on 26 October 2005.
The wife filed a "further amended application" on 19 October 2006.

In it, she sought orders to the effect that [M] live with her and (in very broad terms) that he spend each alternate weekend and half the school holidays with the husband. She also sought other orders, the details of which are not relevant at this point in time.
On 20 October 2006, the husband filed an amended response. In it, he sought orders to the effect that the parties have equal shared parental responsibility for [M], that [M] live with the husband and that he spend time with the wife –
a)on each alternate weekend;
b)for one week in the mid-term school holidays; and
c)for two weeks in the long summer school holidays.
The husband also sought orders pursuant to section 79A(1)(d) of the Family Law Act, varying the property settlement orders from October 2005 in such a manner as to effectively reverse the division of the net proceeds of sale of the former matrimonial home.
On 31 October 2006, Federal Magistrate O'Dwyer made interim orders, by consent, providing for the wife to appoint a selling agent (for the former matrimonial home) and for the husband to cooperate with the agent. The interim property orders included other provisions which are now of little relevance.
Federal Magistrate O'Dwyer also ordered that an independent children's lawyer be appointed, and made directions for trial.
On 2 November 2006, a divorce order was made, to become effective on 3 November 2006.
On 29 January 2007, Ms Jay Manya (report writer) saw the parties and [M]. Her report is dated 5 February 2007.
On 9 February 2007, Federal Magistrate Riley ordered that all extant applications be adjourned for hearing in the [S] circuit commencing

28 May 2007
. Her Honour also ordered that [M] attend therapeutic counselling, and that the parties utilise a communication book.

In addition, her Honour made mutual non denigration orders. All the orders made on 9 February 2007 were by consent.
On 6 March 2007, [M] "ran away" from the wife's home to the husband's home following a disagreement with the wife. The wife followed [M] to the husband's home and an incident ensued.
On 10 May 2007, the sale of the former matrimonial home settled.

The net proceeds of sale amounted to approximately $111,600.
The trial commenced before me on 29 May 2007. It continued on 30 and 31 May and 1 June 2007. It was then adjourned to 18 July 2007 to complete the taking of evidence, and for addresses.
On 1 June 2007, Mr Hannan (for the husband) advised the court that the husband was not proceeding with his property application. It was agreed that, as a result of the husband's decision in this regard, the wife's application in relation to property also fell away and that the original property settlement orders (from October 2005) were to remain in full force and effect. It follows that the only live issues at trial were those relating to the parenting orders sought by the parties.
On the final day of the trial (18 July 2007), and after forceful submissions made by Mr Nicholson on behalf of the ICL, I made orders providing for [M] to live with the parties on a week about basis, and otherwise regulating [M]'s living arrangements with a view to minimising the possibility of him running away. The most significant of the orders made on that day were as follows:
1.     All current parenting orders be discharged.
2.     Until further order, the husband and the wife have equal shared parental responsibility for [M].
3.     Until further order, the child live with the wife from immediately after school Thursday, 19 July 2007 until immediately after school Friday, 27 July 2007.
4.     Until further order, the child live with the husband from immediately after school Friday, 27 July 2007 until immediately after school Friday, 3 August 2007, and each alternate week thereafter.
5.     Until further order, the child live with the wife from immediately after school Friday, 3 August 2007 until immediately after school Friday, 1 August 2007 and each alternate week thereafter.
…
12.    Until further order, the husband and the wife forthwith do all such things and sign all such documents as may be required to enable each of them and the child to attend upon a counsellor as nominated by the independent children’s lawyer (“the Counsellor”) for the purpose of therapeutic counselling regarding the child and his relationship with his parents, and do cooperate with and follow all reasonable directions of the Counsellor in respect thereto.
…
16.    Until further order, a Recovery Order be prepared and do remain on the Court file, and if issued do authorise/direct the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a)     to find and recover the child and deliver the child to the wife at such place as the wife and the person affecting such recovery agree to be appropriate; and
b)     to stop and search any vehicles, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
save that the execution of such order shall be stayed pending further order of Walters FM, or another Federal Magistrate of the Federal Magistrates Court at Melbourne in the absence of Walters FM.
17.    Until further order, the wife have liberty to apply to Walters FM, or to another Federal Magistrate of the Federal Magistrates Court at Melbourne in the event of Walters FM’s absence or unavailability, in Chambers, on short notice by way of telephone mention for the execution of the Recovery Order referred to herein.
18.    The independent children’s lawyer meet with the child as soon as practicable following the Court pronouncing Orders in this matter for the purpose of explaining to the child the terms and effect of such orders and both parties do all such things as may be necessary to facilitate such meeting.

The Parties' Competing Proposals

The ICL’s proposals are contained in a minute handed up by

Mr Nicholson on 18 July 2007. In broad terms, the ICL proposes that the wife have sole parental responsibility for [M], that he live with her and that the husband spend time with [M] as defined in the minute.
The wife agrees with the ICL's proposals, save in relation to the arrangements for Christmas Day in each year.
The ICL’s minute is detailed. There is no need for me to reproduce it in these Reasons.
The husband’s formal proposal is that the parties have equal shared parental responsibility for [M], and that he live with the husband.

[M] is to spend time with the wife on each alternate weekend (from

5 p.m.
Friday to 5 p.m. Sunday), for one week in each of the mid-term school holidays and for two weeks in the long summer school holidays.

Documents Relied Upon

The wife relied upon her further amended application filed 19 October 2006 and her affidavit sworn 18 January 2007. She also relied on her outline of case document filed 24 May 2007.
The husband relied upon his amended response filed 20 October 2006, his affidavit sworn 28 May 2007 (which was filed in court, and substantially amended his affidavit sworn 17 May 2007), and the affidavit of his friend, Ms S, sworn 17 May 2007.
The ICL relied on the reports of Mr Jansen (dated 29 September 2005), Mr Jones (dated 28 July 2006) and Ms Manya (dated 5 February 2007).

Ms Manya's report was annexed to her affidavit sworn 7 February 2007.

The Law[2]

[2] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) FMCAfam 2

Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[3]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[4]
[3] See section 64B(3)
[4] See the definition of "major long-term issues" in section 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[5] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[6]
[5] See section 65DAC; see also Pender & Haywood [2007] FamCA 1526, at paragraph 56
[6] See section 65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[7]
[7] See section 60B(1)
… to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[8]
[8] See section 60B(2)
… that (except when it is or would be contrary to a child's best interests):
(a)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; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[9]
[9] See section 60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[10] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[10] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see section 60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[11]
[11] This list is not intended to be comprehensive. It is simply a summary of the factors in section 60CC(3). The actual factors set out in section 60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
l)any other fact or circumstance that the court considers relevant.

Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[12] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[13]
[12] See section 60CC(4A)
[13] See section 60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[14]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[14] See paragraph 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[15] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[16]
[15] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[16] See section 65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[17] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[17] See section 61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[18] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[19]
[18] See section 61DA(2) and the definition of "family violence" in section 4(1)
[19] See section 61DA(3); it is important to note, however, that the Full Court in Goode (at paragraph 78) held that the discretion in section 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[20]
[20] See section 61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[21]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[22] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[23] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[24] with each parent would be both reasonably practicable[25] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[26]
[21] See, for example, Goode at paragraphs 46 and 47, and Pender & Haywood [2007] FamCA 1526 at paragraph 44
[22] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[23] See section 65DAA(1)
[24] "Substantial and significant time" is defined in section 65DAA(3)
[25] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[26] See section 65DAA(2); see also Goode at paragraphs 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[27]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[27] See paragraph 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[28]
[28] See paragraph 63
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[29]
[29]
The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[30] or
[30] But see subparagraph (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[31] or
ii)impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[32]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[33]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[34] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[35]
[31] But see subparagraph (k) below
[32] See Taylor & Barker at paragraph 74
[33] See Goode at paragraph 65.8
[34] See Goode at paragraph 65.11
[35] See Goode at paragraph 65.9

Issues in Dispute

I have already identified the parties' competing proposals. In broad terms, the issues for determination are as follows:
a)Irrespective of any relevant presumption, should the parties have equal shared parental responsibility for [M], or should the wife have sole parental responsibility for him?
b)Irrespective of any relevant presumption, is it in [M]'s best interests to live with the husband or the wife?
Having regard to the orders made on 18 July 2007, a further issue for determination involves the question of whether the court should simply continue with the week about arrangement put in place at that time (subject to appropriate variations to take account of school holidays, special occasions and the like).
Before dealing further with the parties’ competing applications, I propose to refer to two incidents which featured during the course of the trial, and to the reports of the three report writers.

Incident on 6 July 2006 ("the powder incident")

I have already referred to the wife’s description of the events which occurred on 6 July 2006, which I shall call “the powder incident”. In essence, the wife said that [M] misbehaved, that she disciplined him in an appropriate manner and that he ran away. She also said that the husband refused to support her in any way in relation to the need to discipline [M], and that he refused to return him.
The husband referred to the powder incident in paragraph 32 of his affidavit sworn 28 May 2007. He deposed to the following:
On 6 July 2006 between approximately 5.15 p.m. and 5.30 p.m. [M] turned up at my place and said to me “I have finally had enough; I have left”. [M] showed me a plastic packet with white powder in it and said “Will you believe me now?”. I said to him that there are Court orders and I will have to take you back. He said “I am not going back”. I have since been informed by the Police that the white powder is amphetamines, also commonly known as speed. Because of the seriousness of the situation, I did not return [M] to the wife.
During cross examination, the wife did not resile from her description of the relevant events. The wife also said as follows:
a)After [M] ran away to the husband’s home, she went to the Police.
b)The husband arrived at the Police Station at approximately the same time as the wife. He had [M] with him.
c)The husband would not allow the wife to speak with [M].
d)A form of stalemate was reached, and the parties waited outside the Police Station for approximately 2 hours.
e)Although the husband told the Police that the Department of Human Services had been contacted and that Departmental officers would be arriving to formally remove [M] from the wife, that did not occur. Instead, one of the husband’s daughters arrived with her boyfriend.
f)At no time on that day was there any mention of “white powder”.
g)The husband’s allegations regarding [M] finding “white powder” at the wife’s house are completely false.
h)At no time have the Police ever contacted the wife regarding the “white powder”, or the husband’s allegations generally.
i)The first the wife knew of the allegation regarding the “white powder” was when the matter was raised in an affidavit sworn by the husband on 27 July 2006 (filed in the State Magistrates Court on 31 July 2006).
The wife’s partner, Mr G, who was an impressive witness and whose evidence I accept, confirmed the wife’s version of the powder incident. He said that he does not use illegal drugs and that he would not tolerate his partner using illegal drugs. He said that he had never seen any evidence of amphetamines or other illicit drugs in the wife’s house.
During his evidence, Mr G referred to having seen a statement given by the husband to the Police regarding the “white powder”. The statement eventually became Exhibit H1. It was taken and witnessed by Senior Constable V at [S] on 26 July 2006. The statement refers to [M] arriving at the husband’s house on 6 July 2006, and announcing that he had “run away from his mum because he had finally had enough”.

It continues as follows:
[M] said I know how they will listen to us now and by they he meant the solicitors, so he could leave his mum’s care. [M] then pulled out a large pencil case and produced a small plastic bag containing the white powder.
I nearly had a heart attack. I said where the hell did you get that from and [M] said that it was in an Ice Age 2 tin which his mum keeps on top of her kitchen cupboard.
The plastic bag is about 4 cm by 4 cm with small devil heads printed on one side. Inside the bag is what looks to be a small amount of white powder that looks like salt.
I felt uneasy about having this bag in my house, so I took it to the [S] Police Station to make a report on it and to hand the bag over to the Police.
Senior Constable V also gave evidence (after I had given leave for the issue of a subpoena to him). His evidence was as follows:
a)
The husband attended at the [S] Police Station with [M] on

26 July 2006
. The statement was taken on that day.
b)The husband gave Senior Constable V “a small plastic bag which contained what looked like white salt”.
c)The contents of the plastic bag were analysed at [S] Police Station. Due to the small quantity of the substance, however, it could not be identified as any form of drug.
d)No police officer could have or would have told the husband that the substance in the bag was amphetamine (or anything else), because it had not been analysed.
e)Neither the wife nor Mr G was interviewed – at any stage – in relation to the plastic bag or its contents.
As shall I explain in further detail later in these Reasons, the husband was a most unimpressive witness. Indeed, I regret to have to record that he was one of the least credible witnesses that I have ever heard. There were many examples of the unsatisfactory nature of his evidence, but his responses to questions regarding the powder incident were the most striking. By way of example only, I refer to the following:
a)The husband admitted that he was indeed aware that [M] had “stolen” money from the wife and that she had punished him for that behaviour. He said that was aware of these facts on the day that [M] arrived at his house (being 6 July 2006).
b)He had no satisfactory explanation for not referring to [M] having stolen money (and having been punished) in his affidavit, or in his statement to the Police. He seemed to suggest that the omission was the fault of his solicitor.
c)He said that [M] had been telling him for some time that drugs were a problem in the wife’s house, but suggested that [M]’s allegations on 6 July 2006 were in a different category, because on that day [M] produced clear evidence of the use of drugs.
d)The husband conceded that he did not tell [M] that he would have to take him back to the wife’s house, and that paragraph 32 of his amended affidavit was false in that regard.
e)The husband also conceded that his statement to the effect that [M] said “I am not going back” was false.
f)He conceded that [M] did not say “Will you believe me now?” He asserted that [M] actually used the word “they”, referring to “the legal system”.
g)When reminded of the fact that he and [M] saw Mr Jones on 20 July 2006, and that neither made mention of the “white powder” at that time, the husband admitted that [M] had not produced any drugs to him by that date. In other words, the husband conceded that his description of the powder incident (as contained in his affidavit, and in Exhibit H1) was completely wrong.
h)After a short adjournment, however, the husband recanted his previous evidence, and asserted that he had seen the white powder on 6 July 2006. He then asserted that he had denied seeing the white powder prior to his appointment with Mr Jones (in his evidence given a few minutes earlier) because Victoria Police, and specifically Senior Constable V, had told him not to mention the drugs due to the existence of an undercover police operation and because people’s lives were at risk, including his own life and [M]’s life.
i)The husband asserted that, from the date [M] handed him the bag (being 6 July 2006) to the date upon which he made his statement to the police (being 26 July 2006), Victoria Police had the bag in its possession. Clearly, that evidence directly conflicts with the evidence given by Senior Constable V.
j)It was put to the husband that his initial statement in open court – to the effect that he had not seen any drugs prior to 20 July 2006 (when he saw Mr Jones) – could not have been motivated by the existence of the undercover police operation and his alleged fear for his own and [M]’s life, because he had already raised the existence of the white powder in his previously filed affidavit material. He gave no satisfactory response to this suggestion.
k)The fact of the matter is that the husband could give no satisfactory or coherent explanation for having provided two directly conflicting versions of his evidence regarding the question of when he first saw the white powder.
l)Similarly, the husband had no satisfactory explanation as to how his current evidence could sit comfortably with the fact that his statement to the police was taken in [S] on 26 July 2006, and not in [X] on 6 July 2006 (or very soon thereafter).
I do not accept the husband’s version of the powder incident. I do not accept that [M] produced a bag containing “white powder” (or anything else for that matter) on that day, and do not accept that the husband was told by Victoria Police (or anybody else) to “keep quiet” about [M]’s discovery. Further, I find that the husband was well aware that [M] ran away for no other reason than the fact he had been disciplined (appropriately) by his mother. I do not know how the husband obtained the small plastic bag that he eventually gave to Senior Constable V, and I do not know what the bag actually contained. I have no doubt, however, that the bag and its contents did not come from the wife’s home, and that [M] did not give them to the husband.

Incident on 31 October 2006 ("the changeover incident")

The last day of October in 2006 was a Tuesday. Pursuant to the consent orders made on 4 August 2006, [M] was to spend that night with the wife ─ who was to collect him from school, and return him to school on the following morning.
The parties also attended court on 31 October 2006. As indicated above, consent orders were made on that day, dealing with the sale of the former matrimonial home.
When the wife and Mr G went to [M]’s school to collect him, they found that the husband was already there, speaking with [M]. After a short discussion involving the school principal, the wife told [M] to say goodbye to the husband and that she would be waiting for him in her car.
[M] did not leave with the wife. Instead, he drove off with the husband. All parties (including [M], Mr G and Ms S) then went to the police station. I accept the description given by the wife and Mr G of the events at the police station and subsequently (and I reject the evidence of the husband and Ms S in relation to the same). I am satisfied that both the husband and Ms S behaved inappropriately and raised their voices at the wife, and abused and insulted her.
Later that afternoon, the husband drove Ms S and [M] to the wife's home. Once again, they abused and insulted the wife in front of [M] (who was sitting in the back seat of the car). The husband then dragged [M] out of the car and told him to tell the wife that he ([M]) did not love her and that she was "a mole". As might be expected, [M] was distressed. He tried to leave with the husband, but was not permitted to do so.
The husband eventually drove off, ignoring [M]'s tearful protestations. He simply left [M] on the side of the road. Mr G then took it upon himself to sit down with [M] on a rock on the nature strip outside the wife's house. He spoke kindly with [M], and was patient with him. As a result, and when the husband did not return, [M] eventually entered the wife's house and calmed down. His overnight stay with the wife was otherwise uneventful.

Mr Jansen's report (29 September 2005)

After outlining the parties’ history, Mr Jansen recorded various comments made by the parties, and his impressions of each of them. He wrote that the wife "presented as a pleasant 35-year-old part-time [occupation omitted]". In relation to the husband, he wrote:
10. (The husband) is a 47-year-old former [occupation omitted] who lives in the matrimonial home. He presented as a frequently tearful and indignant interviewee whose attitude to the writer was confrontational and somewhat intimidating at times.
Mr Jansen also made the following observations regarding the husband:
15. … (The husband) seemed to have considerable anger, hurt, disappointment and a sense of betrayal lodged beneath a brittle exterior that ruptured now and then under the stress of probing questioning. … (His) demeanour was menacing at such times. When the writer remarked that he … seemed quite angry, he retorted that he is merely reacting to grievances conveyed to him by [M]. For example, he stated that [M] had found 22 condoms at (the wife's) home, 15 of them used. When the writer asked him why [M] had bothered to count them, he replied, "That's the figure he came up with" and added, "I don't know, I don't live with her; it's [M] who is telling me all these things".
16. Revealing more of the anger whose existence he repudiates, through clenched teeth he declared "I'm supposed to teach him not to touch drugs but his stupid fucking mother does it". Moreover, he stated that legal proceedings had necessitated the sharing of concerns with [M], including: "Look mate, it looks like we're going to lose the house". When the writer queried whether such discussions may have influenced [M]'s view of his mother, (the husband) declared: "He 90% hates her guts now".
Mr Jansen interviewed [M], whom he described as "a subdued 10-year-old boy who engaged cautiously before expressing a critical view of his mother". [M] said that he would prefer to live with the husband. According to Mr Jansen, however, he "… seemed to harbour a negative, polarised view of his mother juxtaposed with an idealised view of his father".
[M] raised a number of grievances relating to the wife's care of him.

In relation to the discovery of the condoms referred to by the husband, however, [M] said that he only discovered two used condoms, which were identified by his friend.
[M] had clearly heard the husband make derogatory comments regarding the wife, and the husband had clearly encouraged [M] to take sides with him against the wife.
Mr Jansen summarised his interaction with [M] as follows:
25. … [M]'s longing to live with his father and antipathy for his mother seemed to stem from a number of factors, especially perceived or real factors in (the wife), her household and lifestyle, and the influence of (the husband's) ongoing bitterness.
While Mr Jansen was observing the husband and [M] together, the husband made clearly inappropriate comments in [M]'s presence. For example, Mr Jansen wrote:
27. … Turning to [M], (the husband) reminded him that he had seen (the wife) having sex with her ex-partner, [Mr N]. At this point, the writer interrupted and asked for more information. [M] explained that, although the door had been shut closed, he had opened it and walked in on them.
Under the heading "Assessment", Mr Jansen wrote:
28.        … it is not unusual for nine to 12 year olds to express rage at one parent along with over idealisation of the other parent. Thus, ([M]) appears to stand with his father in taking sides against his mother, and expressing his anger at her for her perceived faults. … His indignation seemed as entrenched as (the husband's), which ultimately emanates from a different source but is almost equal in its intensity. Thus, while (the husband) "worshiped the ground that she walked on" prior to the separation, her alleged affair and reprehensible behaviour afterwards appears to have created a sense of discovery as to who she really is, namely promiscuous, neglectful and arbitrary. Together, (the husband) and [M] stand united in a righteous effort to protect [M] from his mother's poor parenting.
…
30.        (There exists a secondary agenda, namely the husband's) dependence on [M] to protect against feelings of loss. In addition, a favourable outcome (in the proceedings) would function to legitimise (the husband’s) view of (the wife) as a sexually unfaithful marriage breaker who has forfeited the right to keep [M]. In the circumstances, if [M] were to now enter his father's care, the child's perception of his mother would solidify and their relationship would almost certainly atrophy, especially as contact with her would become optional, and given his understanding that (the husband) would allow him to see her when and if he wished.
31.        (The husband) remains discernibly bitter over the separation and appears unable to contain the feelings of hurt and anger that were obvious to the writer in the interview … It is reasonable to surmise … that [M] is not only aware of his father's anger but identifies with it, has decided that his father is good and his mother bad, and intends to take refuge in the good parent, so to speak. However his preferred parent, (the husband), is unable to maintain appropriate boundaries between the parental and parent-child dyad. … (Emphasis added)
Mr Jansen's recommendation was to the effect that, in spite of [M]'s stated wish, "the status quo is the least detrimental alternative”, and [M] should continue to live principally with the wife.
Mr Jansen was not required for cross examination, and did not give oral evidence.

Mr Jones’s report (28 July 2006)

Mr Jones saw the parties, and [M], at short notice on 20 July 2006. His involvement followed the powder incident, when [M] "ran away" to the husband.
[M] reiterated certain of the criticisms of the wife that he had voiced to Mr Jansen. He appeared to maintain the view that his father is good and his mother is bad. He said that he wished to live with the husband.
Under the heading "Appraisal", Mr Jones wrote:
… (There) were significant levels of similarity in the content and language of the criticisms of (the wife) by (the husband) and [M] and, in my view, it is probable that [M] has adopted positions framed by (the husband). … (It) appears to be the case that (the husband's) self reported views about (the wife) have become substantially influential in the formation of the current opinions of [M] about (the wife).
… (It) was abundantly clear that ([M]) wants to reside with (the husband) and that he does not want to reside with (the wife). … Given that his parents reside only a short distance from each other in the [X] district, it is highly likely that [M] would (run away again) if he was to be required by order to reside with (the wife). In my opinion, [M] expressed strongly held views as to his preferences about residence and contact which, if not implemented, would be associated with undue and substantial increases in his experience of stress.
Mr Jones’ recommendation was to the effect that [M] should live with the husband and have alternate weekend and holiday contact with the wife (although the contact should be suspended for a period of about two months to enable [M] and the wife to undertake family relationship therapy).
Mr Jones was not required for cross examination, and did not give oral evidence.

Ms Manya's report (5 February 2007)

At the time that Ms Manya saw the parties, [M] had been living with the husband for some seven months.
[M]'s views seemed little changed from those that he had expressed to the two previous report writers. According to Ms Manya, he "felt caught in the web of his parental conflicts, however seemed to hold only his mother as responsible for the current difficulties, (and) the more his mother tried to come closer to him, (the more) he felt like moving further away from her".
Predictably, [M] could think of nothing positive about the wife (although he eventually said that he liked the company of his cat at his mother's home). Just as predictably, [M] expressed positive comments about his father and his father's care of him. He said that, if the court decided against his wishes and required him to live with the wife, then he would "keep running back to his father".
Ms Manya described [M] as being "petulant and childish" in most of his observed communication with the wife. The more that the wife attempted to "get emotionally closer" to [M], the more he seemed to withdraw from her. On the other hand, Ms Manya observed that the wife was "totally appropriate" in her interactions with [M], and that her love for her son seemed warm and genuine.
[M]’s observed reaction with the husband was very different.

He laughed and joked with him, sat on the husband's lap, and kissed and hugged him. Ms Manya noted, however, that [M]'s demeanour was "of a child much younger in age".
In their interviews with Ms Manya, both parties reiterated many of the comments made in their affidavit material and recorded in the previous reports. They also displayed the same attitudes to each other. They blamed each other for the breakdown in [M]'s relationship with the wife. The husband said that the wife was unable to provide safe, secure and nourishing care for [M], and that she had not made a sufficient effort to repair her relationship with [M]. The wife said that the husband was determined to destroy her emotionally and was quite prepared to use [M] as a tool in that regard. He would not hesitate to denigrate her in front of [M]. Nor would he hesitate to encourage [M] to defy arrangements ordered by the court.
According to Ms Manya, the wife "… strongly felt that if the she had the primary residence, she would allow [M] to love his father, but if he continued to live with his father, (then) in time she would have no relationship at all with her son".
Under the heading "Discussion and Recommendations", Ms Manya wrote:
37.    ([M]) is expressing strong refusal to even spend time at the home of his mother. In spite of the current court orders, it is reported that [M] is seeing less and less (of) his mother. The husband says that he tries his best to encourage [M] to spend time with his mother but is unable to physically force his son to spend time with his mother. (The wife) is convinced that the husband has "totally brainwashed" [M] and if [M] is not made to spend more time with her by way of enforced court orders, he would totally lose his relationship with her over time. …
38.    [M] seems totally aligned with his father. He does not see a single positive benefit for him in spending time with his mother and experiences life with his father as "all happy and all safe". This is a very unbalanced and skewed picture which is sure to give way to [M] developing a totally distorted view of life and relationships which will influence his personal happiness, relationship with his future partner and his parenting abilities in the future. Over idealisation of his father is also likely to give way to disappointment, depression and disillusionment as he grows older.
39.    … (It) does not appear that (the husband) is interested in finding solutions to the problematic issues, and he has a simplistic thinking that it is best that no pressure is put on [M] to preserve his relationship with (the wife). Nonetheless, it is hard to see how [M]'s relationship would improve with his mother if he is not even required to spend any specific time with her as suggested by (the husband).
…
43.    [M] seems totally entrenched in his father's views. He thinks, feels and speaks like his father. The husband is adamant that he is not negatively influencing [M] to sever his relationship with the wife. However, the writer did not notice any genuine gesture or open and unambiguous encouraging behaviour from the husband towards [M] to link positively with his mother. … (The husband) presented as having limited insight about the power of parental attitudes and opinions on his child in spite of attending several parent training sessions.
44.    Although (the husband) did not present as openly angry during the report interviews, it was clear that he was devastated by the separation and the impact of such on him in the short and long term. He, purposefully or not, seems to have found some solace in having [M] align with him totally that makes him feel righteous and triumphant in his personal and financial fight against (the wife) and it is easier for him to assign blame on the other partner than looking inward to see personal contribution to the current stand-off. …
45.    [M] needs to spend extended time with his mother. Although both parents are capable of being the primary care provider at present, it is hard to see [M] living full-time with his mother. If he is placed forcefully in the care of the wife at this point it is likely that he will run back to his father's care and there will be further litigation which is clearly not in [M]'s best interests. (Emphasis added)
Ms Manya's recommendation was to the effect that [M] live with the husband "for the foreseeable future" and spend time with the wife on two weekends out of three (together with half school holidays).

Ms Manya also recommended that the wife attend counselling "to clearly understand and attend to [M]'s emotional and physical needs during that time spent in her care".

Ms Manya's evidence

During the course of her oral evidence, Ms Manya said as follows:
a)She agreed that the concerns expressed by Mr Jansen in his report had "come to fruition" ─ in that Mr Jansen had been of the view that, if [M] were to enter the husband's care, then he would align himself with the husband and, in so doing, he would (by default) align himself against the wife.
b)She saw very little opportunity for the husband to change his behaviour towards [M] and towards the wife ─ even with the assistance of counselling. In relation to [M], Ms Manya's opinion was that the husband's behaviour was "very controlling". Put another way, Ms Manya was of the view that [M] will do whatever the husband wants him to do.
c)The husband's constant belittling and criticism of the wife to [M] or in his presence is "very bad for [M]".
d)It is in [M]'s best interests to be "quarantined" from the husband's control; he needs to be protected from "an emotionally toxic environment".
e)The husband has definitely manipulated [M], and [M] is clearly aligned with him, but the husband has not (so far) succeeded in alienating [M] from the wife.
f)Significantly, the husband is simply not convinced that it is important for [M] to have a close and loving relationship with his mother.
g)Unfortunately, the husband does not always understand when he is being "so poisonous" about the wife.
h)Both parents give [M] too much power. In particular, the husband does everything that [M] wants. [M] is inappropriately indulged.
i)In order to deal with [M]'s propensity to run away from the wife's home, both parents must take a firm stand. Relevantly, the husband must say to [M]: "Go back to your mother!"
j)In relation to paragraph 38 of her report (quoted above), she confirmed that the matters contained in that paragraph comprise a very real long-term risk for [M]. If [M]’s distorted and unbalanced view of life (and of his mother) is not addressed in the relatively near future, then the likelihood is that his personal happiness, his relationship with a future partner, and his parenting abilities in the future will be adversely affected. Further, and as expressed in the report, "over idealisation of his father is also likely to give way to disappointment, depression and disillusionment as he grows older". According to Ms Manya, [M] might have to wait "until he is 30 or 40 years old to work it all out".
k)
The husband's attitude is that he wants the wife punished. He tries to explain his attitude by arguing that he is attempting to protect [M], and to ensure that he spends time in a safe environment.

The fact of the matter is, however, that [M] grew up in the wife's care for the first eight or nine years of his life and there is no credible evidence that he was not properly looked after during that time.
l)The husband's thinking (to the effect that the wife should be punished and that [M] must be protected from her and from the environment that she provides) may well be simplistic, but the husband is “comforted” by knowing that [M] will see the wife in the same way as he does.
m)For any form of shared care to work effectively, there must be a commitment from the husband to accept [M]’s close relationship with the wife. The husband's negativity "has to stop".
n)The wife, for her part, should ensure that she spends as much time as possible with [M]. She should not leave him with other people and should attempt to structure her work around the time that she spends with [M].
I was impressed by Ms Manya’s insightful analysis, and found her descriptions and opinions of considerable assistance. Her evidence was effectively unchallenged.

The wife's evidence

Among other things, the wife said as follows:
a)She attended counselling with Ms H (as envisaged in the orders of 4 August 2006). The counselling ended when Ms H withdrew from the arrangement of her own accord, but the husband's solicitors did not raise the issue of the counselling having ceased with her or with her solicitors.
b)Generally speaking, [M] has spent time with her in accordance with the relevant orders since approximately February 2007.
c)The wife denied the more serious of the allegations made by the husband, including that she would go out late at night when [M] was in her care and take him to places that he did not wish to go.
d)She is convinced that [M] has no real discomfort with spending time with her. She believes that [M] is well aware that the husband does not want him to have a relationship with her, and that [M] tries to please his father in that regard. Put another way, her view is that [M] feels that if he gets closer to her, then he will be hurting his father.
e)As an example of the type of behaviour described in the preceding paragraph, the wife explained that she goes to watch [M] at his football training on Wednesday evenings. When the husband is present, [M] ignores her. [M] behaves in a similar manner at his football games on the weekend. [M] behaves in this way even during periods when he is spending time with the wife. The husband does not discourage [M] from ignoring the wife (and Mr G) at such times, and often keeps her waiting for half an hour or so while he speaks with [M].
f)As indicated above, the wife disputed the husband's version of the powder incident and the changeover incident. I have already recorded that I prefer the wife's (and Mr G’s) evidence in relation to these matters to that of the husband and Ms S.
g)She said that she found it difficult to discipline [M], for fear that he would run away. She referred to the powder incident as an example of the problems that she faces in this regard.
h)The wife did not resile from her affidavit evidence regarding the husband's violence towards her. Once again, I prefer the wife's evidence in relation to these incidents to that of the husband.
i)On three occasions, the husband and Ms S have removed the wife's dog from her home ─ without the wife's consent.
j)She confirmed that [M] has a good relationship with Mr G.
k)She is aware of Mr G's criminal history, and accepts his version of it. She was clearly uncomfortable, however, when Mr Hannan raised the subject with her.
l)She confirmed that she had not paid child support "as yet”. Generally speaking, her evidence regarding her expenditure on alcohol and cigarettes, and her failure to pay child support, was less than satisfactory. Again, she was clearly uncomfortable when Mr Hannan asked her questions in relation to these matters.

The vast preponderance of the evidence before me (which I need not repeat at this stage, given that it has been discussed in detail in these Reasons), leads to the inevitable conclusion that a change in [M]'s circumstances is absolutely necessary, and in his best interests.

The core changes must be such as to ensure that [M] is permitted to have a close and loving relationship with his mother, that he is permitted to spend adequate time with her, and that he is permitted to respect her and her role in his life. A corollary of those changes is the need to protect [M] from the "emotionally toxic environment" into which the husband has placed him. I accept the evidence of Ms Manya, and Mr Jansen's report, in this regard.
At the completion of the hearing before me, I made comprehensive orders designed to extricate [M] from that "emotionally toxic environment". The orders provided for [M] to spend equal time with each of his parents. It was made perfectly clear to the husband that any attempt on his part to sabotage the arrangement put in place by the court would result ─ in the first instance, at least ─ in the immediate issue of a recovery order. There is no credible evidence before me to the effect that [M] has suffered in any way as a result of the arrangements that were put in place at that time. Those arrangements had the clear advantage of enabling [M] to spend significant block periods with each of his parents, who, after all, both live in the same small country town.
In my opinion, and for the reasons that I have already discussed, this consideration favours the wife's proposals over those of the husband.

Practical difficulties and expense associated with contact

The parties reside in close proximity, and there do not appear to be any practical difficulties associated with proposals that would require [M] to spend time with each of his parents. Having said that, the principal difficulties associated with contact have always been attitudinal (at least, from the point of view of the husband and [M]) rather than practical.
At the end of the day, and leaving aside the husband's wide ranging criticisms of the wife and [M]'s alleged wishes (which matters I have dealt with elsewhere in these Reasons), neither party suggested that this was a relevant factor in the context of the matters in issue in the proceedings.

Capacity to provide for the child's needs

I have already dealt with the husband's attitude to the wife, his attitude to the responsibilities and duties of parenthood in the broadest sense, and his behaviour generally. I have also dealt with his attitude to [M] spending time with the wife.
I find that the husband is capable of providing for [M]'s physical and intellectual needs, but that he is incapable of providing for [M]'s emotional needs.
I find that the wife is capable of providing for all [M]'s needs (including his physical, intellectual and emotional needs). Further, I find that she is likely to do so. She has certainly done so in the past.

To the extent that the wife is currently engaging in paid employment, I find that she is able to structure her employment so as to ensure that she is in a position to care for [M] (or to arrange for him to be cared for) at all relevant times.
In my opinion, this factor supports the wife's proposals over those of the husband.

Maturity, lifestyle and background of the child and the parties

The husband argued that the wife's life style is wholly inappropriate, and incompatible with her role as a parent. He questioned her maturity and raised a litany of supposed protective concerns regarding [M]'s care whilst with her. I have dealt with these matters in detail elsewhere in these Reasons. In short, I have rejected all of the husband's more serious criticisms of the wife and her lifestyle. In many ways, the wife is the exact opposite of the type of person that the husband would have the court believe that she is.
In my opinion, the husband has demonstrated considerable emotional immaturity in his behaviour towards the wife, in his willingness to involve [M] in his dispute with her and in his failure or refusal to recognise that the wife is worthy of his (and [M]'s) respect as a person and as a mother. My findings regarding certain of the husband's actions (in particular, the powder incident and the changeover incident) also indicate a worrying degree of immaturity on the husband's part, as well as a propensity to raise false allegations and, where the husband deems it necessary, attempt to support them with evidence that is less than credible (if not plain false).
To the extent that the maturity and background of the parties can be considered relevant apart from the other factors already discussed in these Reasons, I find that those considerations support the wife's proposals over those of the husband.

Attitude to the child and to the responsibilities of parenthood

I have dealt with this factor elsewhere in these reasons, and there is no need for me to recast previous statements in a slightly different form.
Mr Puckey argued that the husband had abdicated certain of his parental responsibilities to [M] (in that, for example, the husband had failed or refused to encourage [M] to spend time with the wife and to treat her with respect at football and elsewhere). Further, the evidence clearly reveals that the husband has prevailed upon [M] to "stand united with him in a righteous effort to protect [M] from the wife's poor parenting" (to use Mr Jansen's description).
Although I shall refer to the question of family violence again under the next heading, I observe at this stage that domestic violence involves a significant failure in parenting, in that it involves a failure to protect a child's carer, and to protect the child emotionally. Further, the husband's failure to recognise and deal with his feelings of bitterness and anger towards the wife in any meaningful way, notwithstanding that those feelings adversely impacted on [M]'s relationship with his mother, demonstrates that the husband has put his own feelings of resentment, and even his needs or wishes, well ahead of his responsibilities as a parent.
This factor also favours the wife's proposals over those of the husband.

Family violence[38]

[38] This generic summary of the law is extracted from my decision in the matter of PST & CPR (2006) FMCAfam 36

I have already made findings in relation to this subject and regarding the husband's behaviour both before and after separation.
In relation to this subject of family violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the husband to change. It is often said that, notwithstanding the violence, the wife must nonetheless bring up the children with full knowledge in a positive image of their natural husband and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a husband, like this husband, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
Mr Puckey submitted, and I accept, that the husband was effectively "in denial" regarding the effect of his violence on the wife (and, indirectly, on [M]). On the one hand, the husband sought to minimise the significance of his actions, and his history of violence and intimidation towards the wife. On the other hand, he sought to blame the wife for "pushing his buttons".
There is no need for me to repeat the comments that I have made elsewhere in these Reasons regarding the husband's behaviour and attitude. In my opinion, this factor clearly supports the wife's proposals.

Orders least likely to lead to the institution of further proceedings

In my opinion, neither set of proposals is either more or less likely to lead to the institution of further proceedings. The husband suggested that [M] will simply run away if he is required to live with the wife (and, indeed, if he is required to spend more time with her that he [[M]] regards as appropriate). Given the period of relative quiet that has occurred since I made orders for shared care at the end of the trial, however, it seems that [M] has in fact accommodated himself to the changed arrangements.

Conclusion as to most satisfactory proposal

In my opinion, and
a)bearing in mind that [M]’s best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that the wife's proposals are more likely to be in [M]'s best interests than the husband's proposals. Nevertheless, I recognise that the parties have implemented a week about arrangement for the last

12 months or so and that, save for an incident which occurred in or about September 2007 (and which resulted in an application on the wife's part for the issue of a recovery order), the arrangement appears to have been worked. Given the history of this matter and the fact that that [M] is now nearly 13 years of age, I am reluctant to interfere with an arrangement that seems to be working and is allowing him to spend time with both of his parents.
Although neither party directly sought orders for a week about arrangement, there can be no doubt that the court has the power to make such parenting orders as it considers are in [M]'s best interests. Obviously, procedural fairness requires that all parties be given the opportunity to be heard regarding the suitability of any arrangement proposed by the court where it differs from the proposals put forward by the parties.
In all the circumstances, I am not persuaded that the wife's proposals (although far preferable to the husband’s proposals) are necessarily to be preferred to the week about arrangement put in place approximately 12 months ago. I have no doubt, however, that the husband's proposals (namely, that [M] live with him on a full-time basis) should be rejected.
Subject to any further submissions that the parties may seek to make, I propose to make orders providing for the continuation of the current week about arrangement for the foreseeable future. I am prepared to hear the parties, however, if they wish to argue that an arrangement more in line with the wife's proposals should be put in place. In other words, I regard the only real choice as being between the current week about arrangement and an arrangement whereby [M] lives principally with the wife and spends weekend (or alternate weekend) and school holiday time with the husband. I am not prepared to hear any submission to the effect that [M] should live principally with the husband.

Equal shared parental responsibility

The presumption (in section 61DA) that it is in a child's best interests for his or her parents to have equal shared parental responsibility does not apply in the circumstances of this case, and Mr Hannan did not suggest that it should apply. I have made clear findings to the effect that the husband engaged in family violence.
Notwithstanding the fact that the presumption does not apply, I should still consider whether it is appropriate to order that the parties have equal shared parental responsibility for [M].
The wife and the ICL both argued that the wife should have sole parental responsibility for [M]. Mr Hannan argued that the parties should have equal shared parental responsibility for matters such as [M]'s education and health, and for any possible relocation decisions.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility. It provides that such an order is taken to require that a decision about a major long-term issue affecting a child be made jointly by the child's parents. In turn, such an order requires the parents to consult with each other in relation to the decision to be made about the relevant issue, and to make a genuine effort to come to a joint decision about that issue. Unfortunately, the evidence before me suggests that, at least until the husband has demonstrated a very significant change in his attitude and behaviour towards the wife, consultation (from the husband's side) is likely to be minimal. Similarly, I have doubts that the husband could bring himself to make a genuine effort to come to a joint decision with the wife about major long-term issues in [M]'s life. The husband does not respect the wife and appears to place no value on her opinions. He is firmly and implacably of the view that [M] must be protected from her lifestyle.
I find that the wife can be relied upon to inform the husband of all proposed arrangements that relate to major long-term issues. Similarly, she can be relied upon to consult the husband and thereby ascertain his views before proceeding to make any important decision. In my opinion, she will respect his views and will take into account any constructive comments that he may wish to make. I have no doubt that her decisions in relation to [M]'s long-term care, welfare and development will be made with [M]'s best interests uppermost in her mind, and that she will not ignore or trivialise the husband's views.
In the particular and unusual circumstances of this case, however, I am not persuaded that it is in [M]'s best interests to make an order for sole parental responsibility in the wife’s favour. In my opinion, to do so would lead to an further escalation of friction between the parties, which development would inevitably impact adversely on [M] and on his welfare. I have no doubt, as well, that the husband would not hesitate to inform [M] of the court's decision in relation to this subject, and that he would seek to involve [M] in some form of new or renewed alliance designed to defeat its effective implementation.
Without minimising the strong findings that I have made about the husband and his attitude and behaviour, and taking into account the orders that were made at the end of the trial, I am not persuaded that the parties relationship is such that, with the assistance of appropriate counselling or mediation, they should not be given the opportunity to endeavour to resolve issues relating to [M]'s long-term care welfare and development. And I note that, to date, the parties do not appear to have been unable to reach agreement in relation to issues relating to [M]'s education and health.
In the particular and unusual circumstances of this case, it seems to me that it is important for [M] to know and to understand that both his parents have an input into issues of this nature. I will not pretend that I do not have some discomfort with the conclusion that I have reached; nor will I pretend that it will be easy for the parties to discuss major long-term issues, and I accept that there is always the possibility (or even the strong possibility) that an impasse will be reached, but – for [M]'s sake, and bearing in mind that his best interests comprise the paramount consideration in these proceedings – it seems to me that I should order that the parties have equal shared parental responsibility.

Conclusion

I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "The Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the arrangements described above are more likely to advance [M]'s best interests (which, after all, comprise the paramount consideration in these proceedings) than either the husband's proposals or (subject to any further submissions that may presented on her behalf) the wife’s proposals.
For reasons which I have already explained, I propose to continue the current week about arrangement (subject to appropriate modifications to take into account school holidays, special occasions and the like) unless the wife persuades me that I should change that arrangement. Clearly, I will hear and take into account what both the husband and the ICL have to say about such a change as well.
As I have explained above, I propose to order that the parties have equal shared parental responsibility for [M].
Put another way, and bearing in mind the formal steps or "pathway" that should be followed in parenting proceedings, my conclusions can be summarised as follows:
a)Notwithstanding the fact that the presumption in section 61DA (to the effect that equal shared parental responsibility is in a child’s best interests) does not apply, an order for equal shared parental responsibility should still be made.
b)I have considered making an order that [M] spent equal time with his parents.
c)Equal time is not impracticable in a physical or "mechanical" sense. There is a strong argument, however, that the husband's attitude to the wife, and his previous behaviour (as described in detail in these Reasons) could make it impracticable in a broader sense.
d)Although the husband's proposals (to the effect that [M] live principally with him) are contrary to [M]'s best interests as a result of the application of the section 60CC factors, I am not persuaded ─ at this point in time ─ that the making of an order to the effect that [M] spend equal time with his parents would be contrary to his best interests. I have decided to continue the current week about arrangements put in place at the end of the trial (subject to relevant adjustments as discussed above), unless the wife persuades me that that arrangement cannot or should not continue.[39]
e)Given that I have concluded that [M] should spend equal time with his parents (subject to the qualification already discussed), there is no need for me to consider whether he should spend substantial and significant time with the husband.
f)If the wife and/or the ICL is/are successful in persuading me that an equal time arrangement is not in [M]'s best interests, then ─ subject to their (and the husband's) submissions, and any further evidence that may be presented to me (and which I may be minded to allow) ─ the strong likelihood is that I will conclude that, although [M] should live with the wife, he should indeed spend substantial and significant time with the husband. That likelihood arises because such an arrangement is neither impracticable nor, in my opinion, contrary to [M]'s best interests.
[39] I have already recorded that I will also hear and take into account what both the husband and the ICL have to say about the matter.

I will now hear counsel as to the orders that are necessary to give effect to these Reasons

I certify that the preceding two hundred and forty-four (244) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Suzette De La Motte

Date: 25 July 2008

See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36