DL & TA - [2006] FMCAfam 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DL & TA

[2006] FMCAfam 128

FAMILY LAW – Parenting – father seeks equal shared parenting for 7 year old child – high level of conflict between parties – consideration of factors necessary for shared care – final parenting orders made 3 years ago – whether there has been a change in circumstances.

Family Law Act 1975

H v W (1995) FLC 92-598
King v Finneran [2001] FamCA 344
Newling and Newling (1987) FLC 91-856
Rice v Asplund (1979) FLC 90-215
T and N [2001] FMCAfam 222

Applicant:

Respondent:

File Number:

SYM 965 of 2005

Judgment of:

Sexton FM

Hearing dates:

8 & 9 March 2006

Delivered at:

Sydney

Date of Last Submission:

9 March 2006

Delivered on:

24 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr W Moss

Solicitors for the Applicant:

Verekers Lawyers

Counsel for the Respondent:

Ms P Carr

Solicitors for the Respondent:

Rita Thakur &Associates

Counsel for the Child Representative:

Mr J Pesce

Solicitors for the Child Representative:

Maguire & McInerney

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The child AA born 30 October 1998 [“AA”] live with the mother.
AA have contact with the father during school terms as follows:
(a)Every second weekend from after school Friday until before school Monday or until before school Tuesday if Monday is a public holiday commencing Friday 31 March 2006;
(b)Every alternate Thursday from after school until before school the following day commencing Thursday 6 April 2006; and
(c)At any other time by agreement between the parties.
AA have contact with the father during school holidays as follows:
(a)For the first half of all school holiday periods in 2006 and in all years ending in an even number and for the second half of all school holiday periods in 2007 and in all years ending in an odd number; and
(b)At other or alternate times by agreement between the parties.
AA have additional contact with the father as follows:
(a)On Father’s Day, if not a contact weekend from 9.00a.m until 5.00p.m;
(b)On the father’s birthday, if not a contact weekend and on a weekend from 9.00a.m until 5.00p.m;
(c)On the father’s birthday, if on a weekday from 4.00p.m until 6.00p.m;
(d)On AA’s birthday from 4.00p.m until 6.00p.m if on a week day and from 12 noon until 4.00p.m if on a weekend which is not otherwise a contact weekend;
(e)From 4.00p.m Christmas Day until 5.00p.m. on Boxing Day each year.
The father shall return AA to the mother at 9.00a.m on Mother’s Day should that day fall on a contact weekend.
The father shall return AA to the mother for 4 hours on AA’s birthday should that birthday fall during a contact weekend, precise times to be agreed between the parties but failing such agreement, from 12 noon until 4.00p.m.
The father shall return AA to the mother for 2 hours on AA’s birthday should that birthday fall during a week day contact period, precise times to be agreed between the parties but failing such agreement, from 4.00p.m until 6.00p.m.
The father shall return AA to the mother from 9.00a.m. until 5.00p.m on the mother’s birthday should that birthday fall during a contact weekend.
The father shall return AA to the mother from 4.00p.m until 6.00p.m on the mother’s birthday should that birthday fall during a week day contact period.
Alternate weekend contact shall re-commence on the first weekend after the school holiday period when AA is with the father in the first half of the holidays and on the second weekend after the school holiday period when AA is with the father in the second half of the holidays.
At the end of Terms 1, 2 and 3 changeover in school holiday periods shall occur at 4.00p.m. on the second Saturday of the holidays unless otherwise agreed.
In the Christmas school holidays, changeover shall occur at 4.00p.m. on Day 20 of the holidays, Day 1 being the day Term 4 ends, unless otherwise agreed.
For a period of two years from the date of order:
(a)When AA is not at school, changeover shall take place at Centacare Contact Centre and the parties to make immediate contact with the Contact Centre to make all necessary arrangements;
(b)In the event the Contact Centre is closed, changeover shall take place in the foyer of the Corrimal police station.
From the date 2 years from the date of order, contact changeover shall take place in accordance with Order (14) unless the parties agree on a different changeover location.
Pursuant to section 62F(2) of the Family Law Act 1975 the parties must within 7 days contact the Wollongong office of Relationships Australia on 02 4228 7711 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
The parties must attend the appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend, the parties must attend (as the provider directs) as soon as practicable.
The father serve a sealed copy of these orders on the Principal of TPS by delivering a copy of the Orders to the school Principal within 7 days.
The mother serve a sealed copy of these orders on the Corrimal office of the Department of Community Services by delivering a copy of the orders to the Manager within 7 days.
Each party must ensure AA is delivered to school before the start of every school day unless AA is ill or has an unavoidable commitment when the party caring for AA will notify the school of the reason for her absence on the first morning and in the event of illness, provide a medical certificate to the school, immediately upon AA’s return to school.
Each party be restrained from making any negative comment about the other party or any member of the other party’s family in the presence or hearing of AA.
Each party shall have responsibility for AA’s day to day care, welfare and development when she is in that party’s care.
The mother shall authorise AA’s school to provide to the father all notices of school events to which parents are invited and copies of school reports.
For at least 12 months, the mother shall attend AA’s school each week to consult with a member of staff in relation to remedial assistance for AA and thereafter the mother to attend AA’s school at a frequency recommended by the school Principal and/or AA’s teacher.
Each party be restrained from entering the boundaries of the other party’s residence without the prior consent of the other party.
For a period of at least 12 months, the mother shall attend the Corrimal Office of the Department of Community Services each week to discuss issues relating to AA’s welfare and thereafter the mother shall continue her attendances at DOCS at a frequency recommended by the Manager.
Each party must advise the other immediately in the case of AA suffering any kind of medical emergency.
Each party shall notify the other of any change in their residential address within 24 hours of such change occurring.
Each party shall notify the other within 24 hours of their landline telephone number and mobile telephone number and advise the other immediately in the event their contact details change.
Pursuant to section 65DA(2) 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 Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within 7 days.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

THE COURT NOTES:
(a)That both parties acknowledged at hearing the importance of avoiding conflict between them at all times and the destructive impact of such behaviour on AA’s development.
(b)That both parties accept the importance of making positive remarks about the other party to AA.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 965 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about parenting arrangements for 7 year old AA. The parties have never lived together but were in an on/off relationship for approximately 5 years until the end of 2000. Within a month of AA’s birth in October 1998 the father spent 7 months in prison for assault. AA has been subjected to a high level of tension and conflict between her parents during the whole of her life and there is little sign of the situation improving for her. The parties remain in conflict, do not trust each other and are highly critical of each other. AA has missed a lot of school and repeated her Kindergarten year. She is well behind her peer group academically and needs remedial assistance. The father blames the mother for AA’s delay and shows minimal insight into the impact of the inter-parental conflict on AA’s development. The father wants an equal shared care arrangement. The mother wants AA to spend 4 nights with the father every fortnight and to share school holidays between them.
The father is a labourer, aged 36, unemployed at the time of hearing. The father says he earned between $300 and $500 a week for most of 2005 and has been offered a permanent position. However, he hopes to find work in the mines. He has been in a relationship with Ms JP for a few months. As soon as he starts full time work, he intends to live full time with her. He has been living with his brother since before Christmas, although stays with Ms JP during AA’s contact periods. Ms JP is a qualified diet aide.
The mother is 35 and not working outside the home. She hopes to undertake a course. She says CA, her 15 year old son from a previous relationship, is in trouble with the police, smokes marihuana and has caused her a great deal of stress in recent years. CA was in custody at the time of hearing.
Both parties have very little money.
The parties agree AA has seen her father regularly since his release from gaol in mid-1999, though formal contact orders were not made until June 2002. The mother believes AA enjoys contact with the father. The parties live about 10 minutes apart but neither presently has a driver’s licence. The father says he wants an equal shared care arrangement because he can help with AA’s schooling and it would mean “equality for parents”.

Issues

The court must decide what parenting orders are in AA’s best interests which requires consideration of these questions:
a)Should the Orders of June 2002 be re-visited?
b)What are AA’s wishes and how much importance should the court give those wishes?
c)What is the nature of the relationship between AA and each parent and other people in her life?
d)What is the likely effect of any change in AA’s circumstances?
e)What is the capacity of each parent to provide for AA’s needs?
f)Does AA need to be protected from physical or psychological harm?
g)What attitude has each parent shown to the responsibilities of being a parent?
h)Is there any family violence affecting AA or AA’s family and/ or are there any family violence orders in place?
i)What parenting arrangements would minimise the risk of there being further court proceedings about AA?

Should the orders of June 2002 be re-visited?

The court made orders about parenting arrangements for AA on

3 June 2002, nearly 4 years ago with the consent of the parties. Before varying existing orders, the court should be satisfied there are circumstances which require the court to consider afresh how the welfare of a child should be best served: Rice v Asplund (1979) FLC 90-215. His Honour Justice Collier in King v Finneran [2001] FamCA 344 said “The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.” His Honour said the question is whether the new material before the court makes it necessary in the interests of the children to allow further proceedings. This requires the court to give consideration to the importance or seriousness of the issues raised and the impact they may have on the children.
Although the mother responded to the father’s application by asking that his application be dismissed, at hearing she sought a variation of the existing parenting orders. Counsel for both parties and counsel for the child representative asked that the existing orders be varied.
Since the 2002 orders were made a number of changes have occurred which are of some consequence to AA:
a)AA has started school;
b)AA has missed a significant number of school days each year; and
c)AA is well behind her peer group in terms of her intellectual and emotional development.
In considering the Rice v Asplund issue, I must have regard to the child’s best interests as the paramount consideration. The Full Court in Newling and Newling (1987) FLC 91-856 held that there was not a fixed minimum period in which a question of changed circumstances cannot be reconsidered by the court. The orders of 2002 were made by consent so the matter has not been previously litigated on a final basis. I was persuaded there were circumstances which required the court to consider afresh how AA’s interests should be best served and that to allow this further hearing to proceed would advance her welfare.

What are AA’s wishes and how much importance should the court give those wishes?

Ms Spratt formed the view that because of the intense hostility between her parents, AA has a strong need to please both her parents. AA made it clear to Ms Spratt at interview that she did not wish to comment on who she should live with. Ms Spratt said AA knew why she was at the interview and knew her father wanted her to live with him.
The father quoted AA in his affidavit asking to spend more time with him. He said prior to commencing the present application I said to her [AA]… ‘would you like to come and live with dad one week and mum the other week?’ She said ‘no’. I said ‘would you like to come and stay with dad full time?’ she said ‘yes, I would.’ The father does not accept that his questions might have put AA in a difficult position, nor that what she said should not necessarily be taken literally. Ms Spratt said AA does not have the maturity to recognise the ramifications of her remarks. She said AA showed “a much stronger attachment to her mother than her father.”
According to Ms Spratt and the school Principal, AA is well behind her peers intellectually, emotionally and socially. I accept Ms Spratt’s view that AA’s statements to her father should be viewed in this light.
The Full Court in H v W (1995) FLC 92-598 said:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Ms Spratt assessed from AA’s drawings and interaction with her mother that she is closely attached to her mother. She observed a weak connection between AA and her father.
I have given AA’s wishes, as expressed to her father, no weight in reaching my decision.

What is the nature of the relationship between AA and each parent and other people in her life?

Both parties claim to have a close and loving relationship with AA. Ms Spratt has no doubt, from her observations and from AA’s drawings, that AA is much closer to her mother than her father. She says her weak attachment to her father was “disturbingly obvious”. The father took issue with Ms Spratt’s opinion saying he was uncomfortable during the assessment process. Ms Spratt denies her observations were in any way affected because the father was uncomfortable at interview.
AA was observed to have a close and enjoyable relationship with her mother who was able to create an age-appropriate atmosphere for her daughter. Spontaneity, conversation, physical closeness and levity were all observed between them….
The father presented as physically and conversationally distant when observed with AA. He often failed to respond to the girl’s expressed wishes with regards to activities at hand. AA appeared comfortable with her father but there was noticeably minimal emotional joining between the two and her mood was markedly less joyous.
The father is in a relationship with Ms JP. Ms Spratt says AA has not developed a meaningful relationship with Ms JP. There was no connection between them.
The interactions between Ms JP and AA were minimal and with scant emotional content. The child did not appear to be taking a conscious oppositional stand to Ms JP; what presented was more of a simple non-recognition. AA, however, responded comfortably to Ms JP’s practical directions, given mostly in instances of the father failing to assume this role.
Ms JP described AA as “easily tired” and “not interested in doing things” during contact periods with the father though found AA more settled during the longer school holiday periods.
AA sees her maternal grandfather on a regular basis. Ms Spratt found it difficult to assess the nature and depth of AA’s relationship with him. She said:
There was an obvious familiarity and fondness between the two.
I am satisfied AA has a very close relationship with her mother, has a meaningful relationship with her maternal grandfather, but needs to develop a more positive relationship with the father and with Ms JP.

I give this finding significant weight in reaching my decision.

What is the likely effect of any change in AA’s circumstances?

Ms Spratt says AA needs a strong emotional and physical base from which to develop. Ms Spratt is strongly opposed to AA spending more time with the father than proposed by the mother. In her view, such a change will further inhibit AA’s emotional, social and intellectual development, which is already delayed. On balance however, Ms Spratt supports AA having regular weekly contact with the father in the hope it may assist in the development of their relationship. Any more contact than proposed by the mother would have a detrimental effect on AA.
I find AA’s interests will be best served by only minor changes to the current parenting arrangements.

What is the capacity of each parent to provide for AA’s needs?

I am satisfied each party needs professional assistance in different ways to improve their parenting skills. Of particular concern is each party’s capacity to provide for AA’s emotional needs. I find that at times, each party has found it difficult to focus on AA’s rather than his/her own needs. I believe both parties will benefit from professional assistance and this in turn, will be of assistance to AA. Ms Spratt said in her report:
The parents appear to have some unfinished emotional issues. Their relationship is dysfunctional; the father’s anger is palpable as is the mother’s fear of him. This probably impacts negatively upon their parenting.
Both parents presented as having minimal ability to recognise and/or understand the effects that their behaviours and the current dispute may be having on the child...
[AA] is well aware of the parental dispute at both the factual and emotional levels. It would appear that her apparent ability to emotionally remove herself from the trauma of such has been her long-term pattern of coping.

Despite regular contact with AA for many years, Ms Spratt said the father showed a general awkwardness with AA, incapable of involving her in any activity. She believed he may never have had a chance to learn to parent, but may develop skills in time, with assistance. She said it was important for Ms JP to be involved in the father’s contact periods because she has some capacity to parent in a ‘practical sense’.
In relation to her physical needs, the father criticises the mother for failing to manage AA’s medical needs appropriately and is concerned about AA’s eating habits. He says the mother has ignored recommendations from practitioners, particularly in relation to a rash AA developed in 2004. The mother says the father brings AA home from contact if she is unwell as he has no skills to deal with an illness. She says the father has over-reacted to AA’s eczema, and denies failing to manage her condition appropriately. The mother is concerned about the father’s disregard for AA’s safety and gave an example of AA reporting being pushed into a backyard swimming pool by other children with her hands tied while her father was sleeping inside the house. The father agreed an incident occurred but said he was watching from the kitchen and intervened before AA was put at risk.
The father is concerned about the mother drinking alcohol to excess, and spending time in pubs and clubs when AA is in her care. He alleges she has been affected by alcohol at changeover. He says her condition improved for a while but he believes she has deteriorated again recently. The mother told Ms Spratt she no longer drinks to excess yet a few days before interview she was charged with driving with a blood alcohol level of .165. In cross-examination, the mother did not seem overly concerned about the incident and I am satisfied on balance she did not mention it to Ms Spratt. The mother says she has reduced her alcohol consumption and was not caring for AA on the evening in question. She says it was her habit to drink 6 schooners before October 2005, and now she drinks only 6 midis at a time. The mother’s licence was cancelled in September 2005 for non-payment of fines and driving an unregistered car and her licence has now been suspended for driving with a high range blood-alcohol reading. On balance, I find the mother is using alcohol to excess and needs to address the problem. The mother alleges the father and his family are heavy drinkers but on the evidence before me, I make no such finding.
Both parties admitted to long term marihuana use at interview with

Ms Spratt, although both said they stopped using well over 12 months ago. Each party accused the other of amphetamine and ecstasy abuse. In 2002 the parties agreed to an order that they undertake urine-analysis at the request of the other. The father alleges the mother was using drugs at AA’s birthday in 2004. It is clear neither is confident the other will avoid substance abuse.
At hearing I found both parties down-played the role that alcohol and drugs have played in their day to day lives. Despite their assurances to the court that they are no longer engaging in illicit drug use and will not do so again, I have concerns about each party’s capacity to sustain that position.
In relation to emotional needs, I am not persuaded either party has demonstrated the capacity to provide for AA’s emotional needs. I have referred to this issue later in these reasons.
The mother has not ensured AA’s attendance at school on a regular and consistent basis since she started Kindergarten in 2004. She missed 54 days in 2004, nearly a third of her school year, and 35 days in 2005. The mother says she was aware from a meeting with AA’s class teacher this year that AA needs help from a special teacher. Yet AA had already missed 5 days of school in 2006 and the mother was unable to arrange for AA to attend school on the days of hearing. She says she now understands it is important for AA to go to school and plans to do canteen and to help with sport.
The father is understandably anxious about AA’s academic progress, particularly as he left school without basic literacy skills and has had to teach himself. He says he puts a lot of effort into helping AA with her reading and plays educational games with her. He regularly communicates with AA’s school and has accompanied her class on a school excursion. Despite an excellent school report in 2005, Ms BH, AA’s school Principal confirms that despite repeating Kindergarten, AA is at the lower end of the class in reading and maths. Both parties accept that AA requires remedial assistance and will shortly undergo tests to assess the level of her delay. Ms BH says it is critical that AA attend school every day. The mother acknowledges her responsibility for these absences and claims she is improving.
I was unimpressed with the mother’s evidence about her efforts to ensure AA attends school. Her attitude shows a serious disregard for AA’s welfare, and although there may have been marginal improvement in 2005, I find the mother fails to appreciate the significance of AA missing so much school. I am not satisfied that her stated reasons for AA’s absences in any way excuse such a fundamental abrogation of her responsibility as a parent.
Although a lot of time was spent at hearing on the issue of AA’s schooling, Ms Spratt was much more concerned with AA’s emotional development than with her absences from school. The father does not accept the conflict between him and the mother in any way impacts on AA’s progress at school. I agree with Ms Spratt this lack of insight on the father’s part needs to be addressed.

Does AA need to be protected from physical or psychological harm?

This is a significant issue in this case. I find AA has witnessed a serious level of physical, verbal and emotional abuse during her life and the problem is ongoing. She has frequently been exposed to her parents swearing and yelling at each other and to their physical and verbal altercations. In addition, it is clear from the material tendered from the police that both parties have involved the police in incidents involving others as well. The mother describes having her house “smashed” by neighbours: broken windows, holes in the fibro. One of her former boyfriends was badly injured in a fight in the street. AA spent 14 hours at the hospital with the former boyfriend and the mother after the fight. The mother has obtained an apprehended violence order against a Mr RO for threatening her. I am satisfied AA would be no stranger to violence.
The mother reports tension, fights and arguments in her relationship with the father and to constant arguments at changeover and on the phone. The father says “if she screams, I scream back at her.” The mother deposed to a number of serious incidents of violence by the father towards her including hitting her and pushing her into a table the night before AA was born. The incident resulted in AA being born with an injury. Despite the father’s denial, I preferred the mother’s evidence on this issue. Ms Spratt witnessed the father having difficulty controlling his anger when with the mother in the family report interviews. She said the father’s anger towards the mother surfaced at the end of her interviews: “the potential for violence is very real and very present.” She also observed “immense contempt” from the maternal grandfather towards the father.
The father did not properly disclose his criminal history to the court or to the family reporter. He said “I didn’t think my criminal history was relevant to the residence issue” yet conceded he has spent over 9 years in gaol. In cross-examination, I found him dismissive of any conviction on his record which did not result in imprisonment and found him untroubled by the inaccuracy of his affidavit evidence on this issue. He did not readily accept responsibility for his criminal behaviour. “I had problems with the police because of my past” but “I have no dramas with the police these days.” Exhibit 4 discloses a criminal history dating back to 1987 with convictions in February 2001 for contravening an apprehended violence order and common assault and convictions in June 2003 for assaulting a police officer. His record discloses offences of dishonesty, of malicious damage, of using offensive language, of serious assaults as well as serious driving offences. The mother’s counsel put to the father details of police incident reports involving him since AA was born, all of which the father either denied or was unable to recall.
Both parties seriously underestimated the impact of the violence between them on AA. Ms Spratt noticed AA tense in the waiting room and her ability to block out the tensions between her parents.

Ms Spratt said living with such tension and conflict will have disastrous consequences for AA’s ability to form adult relationships long term. Additionally, it will inhibit her cognitive development.

I share Ms Spratt’s serious concerns about both parties’ capacity to protect AA from psychological harm. I have made an order for the parties to attend Relationships Australia for assessment and counselling.

What attitude has each parent shown to the responsibilities of being a parent?

Each party supports AA spending time with the other party and acknowledges the need for AA to have a relationship with each parent. However, I am not satisfied either party fully understands the responsibilities of being a parent. I find AA faces difficulties in both households.
I am satisfied neither party adequately addressed in their affidavit material the issues in dispute between them. Each party grossly understated the gravity of AA’s situation. The mother did not refer to the serious problems she is confronting with CA, with her use of alcohol or with AA’s schooling. The father chose to omit details of his criminal past. Both parties understated the level of abuse which has characterised their relationship.
There is little evidence to satisfy me that either party has taken steps to address the issues in their lives that need addressing for AA’s sake or that either party is committed to taking such steps.
I am not satisfied either party has protected AA from the dispute between them but in particular, the father admitted he has discussed AA’s living arrangements with her and asked her opinion on his proposal for equal shared care. He showed no understanding of the inappropriateness of putting AA in that position. I accept the mother’s evidence that after being with the father on a number of occasions since the father filed this application, AA has said to her “I want shared care”.
The father describes a range of activities he enjoys with AA, including reading, taking her on ‘fun’ outings and arranging play with his sister’s children. However, I find he has very little understanding of the importance of creating a routine for AA, or of how to set appropriate parameters in a loving and constructive way. These are matters I encourage him to address at Relationships Australia.

Is there any family violence affecting AA or AA’s family and/ or are there any family violence orders in place?

There is no dispute the mother obtained a number of orders for apprehended violence against the father during their relationship and after separation and that the father obtained an apprehended violence order against the mother on 21 October 2004 for 12 months [Exhibit 2]. I have set out my findings already on this issue.

What parenting arrangements would minimise the risk of there being further court proceedings about AA?

Given the history of this matter, I have some doubt about each party’s capacity to reduce the level of hostility between them for AA’s sake, yet I believe they now understand it is imperative they do so. I do not have concerns that either party will prevent AA’s contact with the other. Both parties recognise the importance of AA spending time with the other parent. I am encouraged by both parties’ consent during the hearing to an order that they undertake counselling to learn to communicate more effectively.

Conclusion

I share Ms Spratt’s concerns about the nature of the relationship between AA and her father. AA has had regular contact with him for many years, yet in Ms Spratt’s words “there has been minimal joining.” Ms Spratt supports the mother’s and child representative’s proposal for AA to spend 4 nights each fortnight with the father. She encourages the father to arrange for AA to enjoy one special activity with him each term to try to build a stronger relationship between them. I recommend he make those arrangements if possible next term.
I agree with Ms Spratt’s view that these parties are not equipped to manage an equal shared parenting arrangement. Neither is AA’s relationship with the father close enough to enable such an arrangement to work for AA. I share Ms Spratt’s view that the mother’s proposal is more consistent with AA’s needs.
Her Honour Federal Magistrate Ryan, in the case of T and N [2001] FMCAfam 222, summarised the relevant factors the court should take into account when considering a shared parenting arrangement. Those relevant to the present case include:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary schoolwork or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child’s age.
On reviewing the evidence in the present case, I find as follows:
a)The parties have demonstrated an incapacity to communicate;
b)AA is not well adjusted, in fact she has delayed development;
c)The parties have different attitudes to AA’s day to day care and management;
d)The parties have shown very little capacity for compromise;
e)The parties have a poor history of cooperation;
f)Neither party respects the other as a parent; and
g)AA is only 7.
These findings do not meet any of the criteria the court should find before making orders for an equal shared parenting arrangement. In addition, I accept Ms Spratt’s view that AA lacks the maturity to manage week and week about parenting arrangement: “she needs one constant base for her personal development at this time”. I agree with Ms Spratt when she says the father’s proposal shows a focus on his own, rather than AA’s needs.
The father’s counsel submitted that if the court did not accept the father’s proposal for a shared care arrangement, the father would accept the arrangement proposed by the mother and the child representative. I accept the father’s counsel’s submission that changeover should not involve contact between the parties at least for a reasonable period.
AA has lived with her mother since she was born and is accustomed to seeing her father only on alternate weekends and in holidays. The orders the mother and the child representative now propose mean an increase in AA’s time with her father. Ms Spratt has some concerns about whether AA will manage 3 consecutive nights with her father away from her mother. However, the benefit in this arrangement is that AA will not have to deal with the tension between her parents at changeover and the father will ensure AA is at school on time on the Monday morning. On balance I am satisfied the mother’s proposal, supported by the Child Representative is the better option for AA.
I accept Ms Spratt’s view that it is of critical importance to AA’s development that the mother provides stability in AA’s schooling. She recommends the mother have regular contact with the school for advice on how best she can assist AA to learn. The mother tells the court she is willing to see AA’s teacher each week, and is already working on strategies suggested by AA’s teacher.
I am satisfied that the orders set out at the beginning of these Reasons are in AA’s best interests.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 24 March 2006