DOLORES & HUBERT

[2015] FCCA 2097

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOLORES & HUBERT [2015] FCCA 2097

Catchwords:
FAMILY LAW – Parenting – spends time with father – final orders made in 2011 provide for 5 out of 14 nights per fortnight with father – whether the father should have equal time with the child – where the father fixated on securing equal time.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4
Rice & Asplund [1978] FamCA

Applicant: MR DOLORES

Respondent: MS HUBERT

File Number: SYC 2773 of 2009

Judgment of: Judge Altobelli

Hearing date: 16 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Wollongong

Delivered on: 25 September 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Harper

Solicitors for the Respondent: DGB Lawyers

ORDERS

1. That the following Orders made 21 September 2011 be discharged:

   (a)3.3.7;

   (b)3.3.8;

   (c)3.3.9;

   (d)3.3.10;

   (e)3.4.6; and

   (f)3.4.7.

2. That the Child shall spend time with the Father, if he is not otherwise doing so, on:

   (a)The evening before the day of (omitted) from the conclusion of school if it is a school day, otherwise from 5:00pm, for a period of 72 hours.

   (b)The evening before the day of (omitted) from the conclusion of school if it is a school day, otherwise from 5:00pm, for a period of 72 hours.

3. That for the purpose of defining school holiday periods, school holiday periods shall commence at the conclusion of school on the last school day of each term, and end at the commencement of school on the first day of the following term, regardless of whether the Child’s school has a pupil free day or days.

4. That time the Child would otherwise spend with each parent during school holidays shall be suspended except as otherwise provided for in these Orders.

5. That the Child is to spend time with each parent on the Child’s birthday as follows:

   (a)In even numbered years, with the Father on his birthday and with the Mother on the day following his birthday;

   (b)In odd numbered years, with the Mother on his birthday and with the Father on the day following his birthday; and

   (c)In both (a) and (b) above, from immediately after school if it is a school day, or 12 noon if it is not a school day, and concluding at 8:00pm on the same day.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 2773 of 2009

MR DOLORES

Applicant

And

MS HUBERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about X, who is seven years old.  The Court had to decide how much time X should spend with his father.  X is a very fortunate little boy in that he has two high functioning parents who love him very much and who are likely to provide for him everything that he will need in his life as a child.

2. His parents are both intelligent, hardworking and good people, but they are unable to agree about aspects of X’s life, including how his time should be shared between them.  These reasons for judgment explain the orders that the Court has made in this case.

Background

1. X’s father is the Applicant in this case.  He is 41 years old, describes himself as a (occupation omitted) lives in a suburb of (omitted).  The Father represented himself in this case.  The Father was an intelligent and articulate advocate in his own cause, but clearly lacked the objectivity that might otherwise have helped to resolve this matter without the need for a hearing.

2. X’s mother is the Respondent in this case.  She is 33 years old and describes herself as undertaking home duties.  She lives in another suburb in (omitted).

3. X’s parents married in 2006, and separated in December 2008.  X was less than one year old at the time.

4. The litigation in relation to X started on (omitted) 2009, when the Father commenced proceedings in the Local Court at Wollongong.  The learned Local Court Magistrate made an order for week about time, but His Honour Cohen J in the Family Court of Australia in Sydney overturned that decision on 4 June 2009, and instead ordered that X  spend time with the Father for two nights and one afternoon each week, together with special occasions.  The case was transferred to what was then the Federal Magistrates Court in Wollongong.

5. On 28 April 2010, the parents attended a Child Dispute Conference with Family Consultant Ms K, and there agreed that X’s time with the Father would, on Tuesdays, extend by nine hours.

6. On 21 July 2011, what will be described as the first Family Report, was released to the parents, that is, a Family Report prepared by Family Consultant Ms S.

7. On 21 September 2011, the parents entered into further Consent Orders which were made by Federal Magistrate Donald, as he then was.  It was agreed by the parents that X would spend an additional night in the care of his father.  These orders were Final Orders. They relevantly provided that, commencing from 1 July 2012, X would spend time with his father each alternate weekend from 3:00pm Friday to 9:00am Monday, and each alternate Thursday from 9:00am until 9:00am Friday, and each alternate Tuesday from 9:00am to Wednesday at 9:00am, together with school holidays and special days.  In short, this order provided for X to spend 5 nights out of 14 with his father.

8. The Consent Orders specifically note that the Father had applied for equal time as from when X commenced school, as well as noting that should a subsequent application be made to the Court, the parents agreed that the principles in Rice & Asplund would not apply.  The Court finds that no Rice & Asplund issues arise in this case.

9. X turned five on (omitted) 2013 and three days later his father filed a further application in the Court.  This was settled on 3 July 2013 when Consent Orders were made for X to attend (omitted) Public School.

10. The Father’s present Application was filed on 3 April 2014.  In this Application he sought an Order for equal time.  The Mother filed a Response.  The parents attended a Child Dispute Conference.  A further Family Report was ordered.  Family Consultant Ms S produced what will be called the second Family Report on 16 October 2014. 

11. Ultimately, the matter was heard before the Court on 16 July 2015.  By that time, the Father had amended his Application and was seeking orders for equal time, but in blocks of three days and four days rather than seven days.  His Application also sought some specific orders about special occasions.  The orders sought by the Father at the final hearing are reproduced in the first schedule to these reasons.

12. Initially, the Mother only sought Orders that the Father’s application be dismissed, with the exception of varying the Orders for special occasions.  By the time of the hearing, she also sought to vary the Orders in relation to school holiday periods by way of clarifying some aspects thereof.  The Orders that the Mother sought are reproduced in the second Schedule to these reasons.

The evidence and proposals of each party

1. As indicated before, the Father represented himself at the hearing, but the Mother was represented by her solicitor and her Counsel, Mr Harper. 

2. In the Father’s case, he relied on a substantial Affidavit that he swore and filed on 2 July 2015.  In the Mother’s case, she relied on her own Affidavit of 17 June 2015, and that of her husband, Mr D, sworn 17 June 2015. 

3. Both parents were required for cross-examination and were indeed cross-examined.  The Family Consultant, Ms S, was also cross-examined.

4. It is important to record that, despite the fact that X’s parents have been litigating about him for most of his life, that did not mean that X’s life centred around his parents litigation.  Indeed, life for X well and truly continued.  He experienced joyful birthdays, surrounded by those who loved him.  He experienced the active involvement of both his parents and their extended families in his life.  He experienced all the usual things that children his age experience, including things like kinder gymnastics, swimming lessons, preschool,  travel (including overseas travel), attending doctors and speech therapists, graduating from preschool, and starting kindergarten.  He plays sport, participates in music lessons and spelling bee competitions and has the usual busy social life that any well-adjusted child with normal parents would experience. Apart from the fact that X’s parents have been litigating about him on and off for most of his life, one would have thought that X was experiencing a wonderful, normal upbringing.

5. X’s father is passionately committed to the idea of equal time with X because he believes that it is in X’s best interest and maximises the opportunities for both X and his father to experience a rich and meaningful relationship in every conceivable way.  In legal terms, the Father contended that equal time was both in X’s best interest and reasonably practicable.

6. When it was suggested to the Father during the course of the proceedings that some of the evidence before the Court suggested that X’s parents struggled at times to implement the current arrangement for substantial and significant time, as well as struggled to effectively communicate with each other, the Father’s response was to argue that there were far more examples of effective communication and cooperation than ineffective ones, and that, in any event, to the extent that the Mother’s case relied on difficulties in this regard, it was a manufactured case, indeed a case mounted strategically, but not a case that actually reflected the relationship between them.

7. The Mother’s case was quite different.  Whilst she did not seek any Orders reducing the Father’s time with X, and thus implicitly recognised that the current arrangement was both in X’s best interest and reasonably practicable, she submitted that a close examination of the evidence would show that such of the problems as have arisen to date are significant ones, which cumulatively strongly contraindicate that progressing to equal time was in X’s best interest or reasonably practicable.

8. It is, indeed, unfortunate that two good parents such as X’s should willingly submit themselves to the critical scrutiny of a Court in the course of a forensic exercise such as this.  Fine distinctions need to be made about each parent’s personality, attributes and functioning as parents, all of which probably reflect in no way whatsoever on who they are as people.  The focus must always be on what is in X’s best interest, rather than what each of his parents believe, even tacitly, as being their entitlement under law.

The applicable law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part are 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 their children.

   (2)    The principles underlying these objects are 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).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

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

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i)   the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out n subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  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;

   (m)  any other fact or circumstance that the court thinks is relevant.

1. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)   if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)   if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Family Report

1. Family Consultant Ms S's Report is dated 16 October 2014.  She met with both parents, the Mother’s new husband, Mr D, and their children, A and B.  Ms S correctly summarised the history of the matter and the current proposals before the Court.  Indeed, she correctly observed at paragraph 2 of her Report the Father’s current application is the third application made to this Court regarding parenting arrangements for X.  Each application has included the Father proposing a week about parenting arrangement and the Mother proposing that X live primarily with her.

2. Both parents impressed her in many respects.  For example, she had found the Father to be “a committed, involved and loving parent”.  His observed interaction with X “appeared confident and settled” and their relationship “appeared close and warm”.

3. The Family Consultant found the Mother to be “balanced and considered” and X was observed to have “an easy and close relationship” with his mother.

4. The Family Consultant met with X, who she records, “presented as an intelligent boy who said that he is enjoying school”.  Despite the complexity of the current parenting Orders, she recorded X as having a firm understanding of the current arrangement and being easily able to identify when he is with his mother and when he is with his father.

5. She records X as describing a close relationship with both of his parents, Mr D and B and A.  X appeared to have quite a keen perception of his parents’ relationship.  At paragraph 30, the Family Consultant records:

   X said that his parents are “like friends but not in love”.  He knows they like each other because they let him go to each other’s houses.  He thinks that they “probably” talk to each other (as this is another way in which you can see that people are friends) but he has not seen them talking. He appeared to have no concerns about their relationship.

   What is particularly perceptive about this record is that X has not seen his parents talking with each other.  Obviously, X’s opportunities to observe his parents talking would be limited to changeovers as well as events at which they both attend.  His perception about the level of communication happening at changeover will shortly be compared to his father’s perception of the same.

6. X appeared to have a keen understanding of the issues before the Court.  At paragraph 31 of the Report the Family Consultant records:

   X said that it “is not fair” that he spends more time with his mother and is unable to spend as much time with his father.  He identified his father as feeling “sometimes” sad because of this and he worries about his father when he is not with him.  He said that his father wants him “to spend one week with him and one week with Mum” while he believes that his mother wants things to remain the same.

7. The pressure that X is experiencing is captured at paragraph 33 of the Report:

   X said that he feels some sense of pressure about choosing between his parents as he understands that they want different things and he would like to please them both.  X said that “it is hard to tell Dad that I don’t agree with him because I don’t want to upset him” and that this has included instances where he has agreed with him without considering whether he actually does agree with what his father is saying.  X was confused about what parenting arrangement he wants and he expressed several views about what he thinks ought to occur.  He said that he wants a week about parenting arrangement to occur because it is “fair” for him and his parents, that he misses his father and that spending equal time with him would help with this, that he enjoys his time with his father including the one on one time, and that he believes that a week about arrangement is what would make his father happy.  X said that he would feel “mad” were a week about parenting arrangement to not occur because he “really wants it to change”.  X also said that, were he to spend a week with his mother and a week with his father, he would miss B and A (and they would miss him) and that he would miss each parent when away from them a whole week at a time.  He also said that the current arrangement should not change because “if I don’t like it (the week about parenting arrangement), Dad wouldn’t let me go back (to what is the current arrangement)”.  Overall it was clear that X has close and positive relationships with each of his parents, however, he acknowledged feeling significant pressure and confusion in trying to decide on an appropriate parenting arrangement for him, something that is perhaps beyond his years. 

8. It should be noted in relation to the above paragraph that X’s father openly conceded during the hearing that his discussions with X about the matters before the Court, though well intended, were quite inappropriate.

9. The Family Consultant’s evaluation commences at paragraph 36, where she expresses concerns about the appropriateness of an equal time arrangement:

   Although Mr Dolores said that the parental relationship is amicable and cooperative, there appear to have been instances when it has been characterised by significant limitations.  Now for the third time, the parents have returned to this Court, both indicating that, at least at times, there is a lack of cooperative co-parenting between them.  Ms Hubert’s, and Mr Dolores’ to a lesser extent, accounts about the parental capacity to jointly sort through issues regarding X, raise concerns about how the parents have historically struggled with negotiating smaller (when holiday time begins and school term time ends and whether each parent is to be informed of all birthday parties that X is invited to, what activities he does and who is to decide these activities) and larger issues (the overall parenting arrangement, the cost of X’s health appointments, which school he attends and when he should start school).  These communication problems, especially from Ms Hubert’s perspective, have not improved over the years and she presented with limited hope that they would improve in the future.  These limitations (even if only perceived by one of the parties) are contraindications to a positive long term outcome of an equal time parenting arrangement.  Such an arrangement requires the capacity for maximum and optimal communication and negotiations even when, perhaps, the parental relationship is flawed.  Mr Dolores and Ms Hubert do not appear to have this capacity.  Despite the parental relationships limitations, each parent is considered to genuinely value the role of the other parent in X’s life.

10. At paragraph 37, the Family Consultant records the fact of X’s important and significant relationships with both parents and if the strength of the parental relationship alone were the determinant of the case, either parents’ proposal would do.  She was concerned, however, about how X would cope at his age with a week-long block of time away from each parent.  She encouraged the parents to consider blocks of time of no more than three to four nights until X had gained a greater emotional maturity.  Indeed, as the Father acknowledged during the proceedings, his Amended Application to the Court was designed to reflect this.

11. At paragraph 38 of the Report, the Family Consultant noted that X’s relationship with his half-siblings is an important consideration because sibling relationships are often the longest and most important one that children experience.  She was concerned about the possibility of these relationships becoming distant if week-long blocks of time were implemented.

12. At paragraph 39, she expressed a concern about the Father speaking with X and discussing his proposed parenting arrangements.  The pressure that this subjected X to is referred to at paragraph 39:

    There are concerns that Mr Dolores speaking with and discussing his proposed parenting arrangement is putting X in a difficult position.  X reports feeling pressure and confusion about what parenting proposal he wants.  He was focussed on what he thought was a “fair” parenting arrangement for his parents.  At his age, X would be unlikely to consistently separate his own views from his parents’ wishes and I was unsurprising that he expressed a sense of pressure about wanting to please each of his parents and to not let his father down with his own contrary views.  Although Mr Dolores is considered to love X and clearly want what he considers is best for X, his sharing of his views with X is considered misguided. Mr Dolores is putting undue pressure on X by talking to him about parenting arrangements and he is strongly encouraged to cease doing so. 

    As indicated before, the Father conceded the inappropriateness of the discussions he had with X. 

13. Paragraph 40 is an insightful comment by the Family Consultant:

    This author is concerned that Mr Dolores appears fixated on achieving a week about arrangement and there are concerns that there will be subsequent Court applications should he not get what he wants this time.  Returning to Court would be likely to place X under increasing pressure, especially were Mr Dolores to continue to speak to X about his proposals.  Such a circumstance would likely result in ever increasing negative outcomes for X, as the pressure and emotional intensity of prolonged and repeated Court action would be expected to impact negatively on both him and his family.  Although there are concerns about a week about parenting arrangement at this point in time as outlined above, a positive outcome would be that there would likely be less chance of future Court applications by Mr Dolores.

14. The Court did not consider the Family Consultant’s use of the word “fixated” in any pejorative sense.  As foreshadowed early in these reasons, the Father presented as a parent who was passionately committed to the idea of equal time as being in the best interest of his son.  The Father was certainly resolute, but, interestingly, the Court’s observation of him was that, as the hearing progressed, and the evidence unfolded, perhaps with the assistance of some observations from the Bench, the Father began to understand that the Court might be interpreting the evidence about the parental relationship in a way different to his own.

15. The Family Consultant could not support the proposal for equal time because of X’s sibling relationships and what she considered to be the Mother’s assessed genuine sense of the poor parental relationship, together with X’s sense of confusion and pressure about the parenting arrangements.  The Family Consultant felt that, perhaps, the Father was “unable to grasp the meaning of, and genuine attitude behind a cooperative parenting relationship”. 

16. Ultimately, the Family Consultant recommended no further changes to the parenting arrangements pertaining to X.

17. The Family Consultant was cross-examined by the Father, who appeared, at times, to be personally aggrieved by various aspects of the Report.  The Father, by his questioning, also revealed that he misunderstood the role of the Family Consultant and, in particular, that it was not her role to establish who was telling the truth, but rather to work within the parameters of what each parent told the Family Consultant.

18. Of particular concern to the Father was paragraph 16 of the Family Report.  In order to understand the issues that arise from this cross-examination, it is necessary to set out the paragraph:

    Ms Hubert said that the parental relationship is difficult and that she has limited confidence in her and Mr Dolores’s ability to communicate and negotiate.  She said that they rarely speak to each other when face to face and that most of their communication is by email.  She described Mr Dolores as intimidating, controlling and abrupt (she said that it is “his way or no way” and that he is unwilling to negotiate with her) when communicating with her and she said that she feels “uneasy” in his company.  Ms Hubert said that the best approach for her is to avoid Mr Dolores as much as possible.  She gave some examples of Mr Dolores’ control including that he had indicated that she is unable to take X on a family holiday to (omitted) at the beginning of the September school holidays (on the weekend following this assessment) with Ms Hubert’s mother’s extended family, because, he said, the school holiday period does not start until the Monday following the finish of school on Friday.  She said that she had assumed (as had been practised in previous school holidays) that the school holiday time starts at the end of school term on Friday.  Ms Hubert said that during email correspondence between her and Mr Dolores about X, Mr Dolores copied the school principal and X’s school teacher into an email that alleged that she was the reason for the lack of communication and that she was responsible for not passing on relevant information to him.  She said other issues include: unresolved disagreements about speech therapy in that she asked Mr Dolores to help with the cost of private speech therapy sessions and that Mr Dolores refused stating that it ought to come out of  child support; Mr Dolores  enrolled X in activities without informing or consulting with her beforehand; and that Mr Dolores sent her abrupt and criticising emails about not being told about or invited to attend a birthday party that X was invited to when in the care of Ms Hubert (she said that Mr Dolores had quizzed X after the birthday party and then sent her the email).  Ms Hubert said that she did not think to tell Mr Dolores as it was a party invitation for X and the party was on while X was in her care.

19. As it turns out, after the Father had completed his cross-examination of the Mother, a number of matters became apparent which are quite inconsistent with the representations made by the Mother to the Family Consultant, and duly recorded at paragraph 16.  It is unnecessary to traverse the detail of these matters because, ultimately, they do not influence the outcome of this case in the manner that the Father contended.

20. As it turns out, however, the Court finds that whereas the Mother had described the Father as “intimidating, controlling and abrupt”, the evidence clearly demonstrated that there were times when she was controlling and abrupt with the Father, particularly in terms of decision making and communication.  As it turns out, the evidence indicates that the Mother’s description of negotiating with the Father as being “his way or no way” is a very good description of how she behaved at times with the Father in terms of communication and decision making.

21. The example that the Mother gave the Family Consultant of the Father controlling the family holiday to (omitted) at the beginning of the September school holidays, was quite manipulative because the Court finds, as it turns out, that the Father’s interpretation of the Orders was flawed, but bona fide.

22. Moreover, at paragraph 16, where the Mother complained about the Father sending her “abrupt and criticising emails”, in fact, there was one email only, which the Family Consultant accepted in cross-examination it could hardly be described as either abrupt or criticising.

23. This theme continued in paragraph 17 of the Family Report, which is reproduced here:

    Ms Hubert said that she believes that she has “always given into him (Mr Dolores)” and that Mr Dolores has “never reciprocated”, leaving her feeling that he continually manipulates the parenting arrangement, focussing on how much time he has with X rather than what is in X’s best interests.  She said that, as an example, Mr Dolores is meant to have X three nights over both (omitted) and (omitted), but that instead, he has X for the day of (omitted) and the day of (omitted) and organises to have X for the three nights some weeks later (so that the three nights does not include the religious days) thus meaning X is with his father three weekends in a row.  She said that X was unable to attend his maternal uncle’s wedding due to Mr Dolores refusing to swap a weekend in the parenting arrangement.  She said that, because his answer has always been “no”, she no longer asks for any changes to be considered.

24. The Mother complained to the Family Consultant that she felt continually manipulated by the Father in terms of the parenting arrangement. After hearing the Mother’s evidence, the Court concludes that there were times when she was just as manipulative as he was.  Moreover, the Mother plainly misrepresented to the Family Consultant that the Father had refused to swap a weekend so that X could attend his maternal uncle’s wedding because, in fact, she had never told the Father that the purpose of swapping the weekend was to attend the wedding in question.

25. The Father was obviously concerned that the Family Consultant may have evaluated this matter, and made recommendations, on the basis of plainly mistaken representations made by the Mother.  What the Father failed to understand, no doubt because he lacked the objectivity that legal representation would otherwise bring to a case such as this, is that the very matters that he established as a result of his cross-examination of the Family Consultant and the Mother strongly contraindicated the making of the Orders that he himself proposed to the Court, particularly when this evidence is considered along with his own evidence.

1. The Family Consultant was plainly unperturbed by these developments in the evidence.  In short, this evidence merely confirmed the appropriateness of the recommendation that she made.  The Family Consultant patiently explained the implications of this evidence to the Father. She explained, for example, that the Mother’s actions demonstrate that, from X’s perspective, he has two worlds between which he must navigate, as he has.  As X loves both his parents, and has an allegiance with both of them, he is unwittingly subjected by both his parents to an intense loyalty conflict so that he “has to split himself into two”.  This inability to co-parent, plainly apparent from the material before the Family Consultant, created a risk to X.

2. The Family Consultant explained that, even if the Father’s hypothesis about the Mother being strategic was correct, or even if it was the case that the Mother was merely exaggerating the problems that she explained to the Family Consultant, the outcome was precisely the same, that is, it manifested the significant continuing difficulties in the parental relationship.  She reflected on the fact that these problems had existed for many years and were reflected, for example, in her 2011 Family Report.  Four years later, she opined, the same problems continued.  The prognosis for change was not very optimistic in these circumstances.

3. In short, the Family Consultant explained that, if the Court made findings in accordance with what was put to her (as indeed it does), it does not detract from her recommendations but merely confirms them.

4. The Family Consultant accepted in cross-examination that X’s progress at school was exceptional and also that there were many decisions about X that the parents were able to reach.  The Family Consultant explained, however, that the appropriate focus should be on those decisions in respect of which the parents were unable to agree, or struggled to reach timely agreement, and also that progress at school was not necessarily indicative of absence of a stress on a child. 

5. The Family Consultant emphasised that X appeared to her to be pressured and confused at times in seeking to please both parents.  She explained that even if only one of two parents perceived limitations in the parental relationship, that in itself was a reason for not extending the existing spends time with arrangement, particularly equal time, because, based on her experience, such an arrangement required a very high level of parental cooperation, which was absent in this case.

6. There was nothing that was put to the Family Consultant that either caused her, or causes this Court, to reconsider the recommendations that she made.  Indeed, the further evidence that was skilfully adduced by the Father merely confirmed the inappropriateness of changing the orders.  The Family Consultant’s recommendation stands.

Meaningful relationship

1. X is blessed with meaningful relationships with both of his parents and, indeed it would seem, his extended family.  No proposal before the Court would change this.  It could not be said, for example, that X’s relationship with his father would become any more meaningful as a result of spending more time with him.

Protecting the child from harm

1. X is again blessed to have two parents who are able to protect him from the harm that might arise from abuse, neglect or family violence.  None of these features are present in this case.

The child’s views

1. To the extent that there is evidence of X expressing a view about wanting to spend more time with his father, the Court places no weight on these views.  X is only seven years old and, despite the fact that he is obviously a very intelligent young boy, he lacks the maturity to be able to make an informed expression of his views, or for the Court to take this into account. 

2. As the Family Consultant explained to the parents, X is caught in a loyalty conflict between two parents who he loves.  This makes any expression of views to either parent quite unreliable.  Another reason why X’s views might not have any weight is the evidence that the Father has discussed the proceedings with X.

Nature of relationships

1. All the evidence before the Court indicates that X has close and loving relationships with each of the other significant people in his life, but primarily his mother and father.  The Court accepts the Family Consultant’s evidence that X’s relationships with his step-siblings, B and A, is a close one, and a very important one to him, both in the short and long term.

2. To reduce the amount of time that X spends with his step-siblings is a relevant, but minor, consideration contraindicating any change to the existing relationship.  In all other respects, it is highly likely that any of the proposals before the Court would not change the good relationships that X has with the people who are important to him.

Participating in decision making

1. As foreshadowed earlier in these reasons, the Court believes it is most unfortunate that two good parents would expose themselves to the critical forensic scrutiny of the Court as a result of the matter proceeding to a hearing.  It just means that parents invite the Court into the minutiae of their lives, with the correlating invitation to pass judgment on even relatively minor aspects of what they have said, done, thought, or admitted as parents.

2. To this extent, therefore, there is evidence that either or both parents have, at times, sought to deprive the other of the opportunity to participate in decision making, even in relation to very minor things such as extracurricular activities.  These are not matters of consequence and do not detract from this Court’s firm belief that X’s parents are both good parents, but it does reflect on their ability to parent cooperatively.

Obligation to maintain

1. The Court is required to consider the extent to which each of X’s parents has fulfilled, or failed to fulfil, that parent’s obligation to maintain the child.  There is minor and probably inconsequential evidence before the Court that the father may have regarded his assessment issued by the Child Support Agency as being the zenith of his obligation to maintain his son.  This is not a big issue.  There was a reference in the evidence to the payment of speech therapy fees.  It is not determinative.

The likely effect of changes in the child’s circumstances

1. The evidence from the Family Consultant did not highlight this as a major issue.  Indeed, she was very balanced and objective in reflecting on the fact that the difference between five nights a fortnight and seven nights a fortnight probably isn’t a significant one from X’s perspective, provided that his absence from either parent was not for a week-long block.  The Father amended his proposal to reflect the Family Consultant’s concern in this regard.

2. It is not as if, however, this is a case where increasing X’s time with his father by two nights a fortnight would affect his relationship with his mother or the significant others in his life.  Even in relation to spending less time with B and A, whilst this is a factor, it is hardly determinative of its own.

Issues of practical difficulty and expense

1. There is no evidence before the Court to suggest that either proposal would raise issues of practical difficulty and expense.

Parental capacity and parental attitudes

1. The Court prefers to deal with both of these considerations at the same time.  The Court is required to consider the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs.  In addition, the Court is required to consider the attitudes to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.  In many respects, this was the focal point of the litigation.

2. The Court has already been critical of the Mother in the context of the misrepresentations made to the Family Consultant.  So far, the concerns about the Father’s capacity and attitudes have not yet been set out.  There are a number of concerns in this regard.

3. At paragraph 40 of the Family Report, the Family Consultant expressed concerns that the Father “appears fixated on achieving a week about arrangement”.  Her concern, of course, needs to be understood in context, particularly the history of this litigation.  The term “fixated” carries with it a connotation of wanting something obsessively or single-mindedly, and inherent in this notion is the inability to see things from another’s perspective, or to consider the implications of one’s fixation on others.  If this were the case, in certain circumstances, it would suggest a limitation in a parent’s capacity to meet, for example, a child’s emotional needs, and it might even demonstrate irresponsible parenthood.  Regrettably, this is the conclusion that the Court reaches in relation to the Father.  It is with great regret that this judgment has to be made, not just on the Father, but on the Mother too.  These are good parents, but their inability to agree about their son necessarily invites the Court’s judgment about them.

4. At paragraph 40 of the Family Report, the Father was plainly warned as at 16 October 2014 that continuing the litigation would “…be likely to place X under increasing pressure, especially were Mr Dolores to continue to speak to X about his proposals.”

5. Two things are abundantly clear.  The Father continued this litigation despite the Family Consultant’s strong advice.  Moreover, even after the hearing commenced and the Court suggested, subtly for the most part but not so subtly at other times, that the Father needed to reconsider his case in view of the strategy that he himself had adopted in running the case, nonetheless he persisted.

6. The Family Consultant had plainly warned the parents about the pressure that X was subjected to, and yet the Father persisted.  From his questioning of both the Mother and the Family Consultant, it is apparent that the Father believed that the absence of trauma in his son’s life, and his son’s excellent progress at school, was inconsistent with the matters asserted by the Family Consultant.

7. Regrettably, the Father’s fixation with a particular outcome blinded him to the obvious.  Even though clearly warned at paragraph 40 in the Family Report about “the pressure and emotional intensity of prolonged and repeated Court action would be expected to impact negatively” on X, the Father chose to substitute his own lay assessment for that of an expert, by pointing to the absence of trauma in X’s life.

8. Moreover, the warning about not speaking to X was significant.  Indeed, the Father admitted in evidence that he had spoken to X and seemed very proud about the creative manner in which he had done so.  He explained that rather talking directly with X about his wishes, he prepared a diagram of the parenting arrangement, duly coloured in, depicting the current arrangement, and one for equal time.  He asked X, “Which one would you prefer?”  He said that X preferred the equal time arrangement.

9. The Father’s evidence is that this discussion took place at a time when X was six years old, which means, therefore, that this discussion took place before 19 February 2015, when X turned seven.  The Court cannot rule out the possibility, therefore, that a conversation such as this actually took place after the release of the Family Report on 17 October 2014.  The Court accepts, however, that the Father was not asked this question in cross-examination.

10. In any event, the Father gave further evidence about the conversation.  Indeed, he acknowledged in cross-examination that a conversation to this effect took place twice over a period of four or five months.  The Father acknowledged the possibility that X knew that the Father wanted him to spend more time with him.  The Father said he was motivated to have the conversation because he did not want to proceed with the Court case if X was against what the Father proposed.

11. The answer to the question obviously leads to the inference that X must have had some reasonable understanding that equal time was what his Father wanted.  Whilst the Father’s evidence was that, “I did it that way to avoid pressuring him”, the reality is precisely the opposite.  Indeed, the Father had the insight during cross-examination to acknowledge that he should not have had this conversation and that his son was, in any event, too young to have an independent view.  When asked to concede that he probably put his son under pressure, he agreed but added the caveat that the pressure was not as bad as what the Family Consultant said.  Again, the Father reverted to the language of trauma saying that X was “not showing any signs of trauma” after the conversation.  When pressed he explained that he was not aware of X losing sleep or the pressure having an impact on his social or school life. 

12. If, as the Father asserts, he needed to know X’s view about an equal time arrangement before he could pursue the matter in the Court, and if, as the Father said, he now appreciated he should not have done it and X was too young to have formed an independent view, the question must be asked why the Father, at that point, did not recognise that his own rationale for the continuation of the proceedings had been removed.  The Father could have stopped the case then and there.  He could have stopped the case at the end of his evidence and at the close of day 1 when the Court invited him to reconsider his case.  That he did not do so merely confirms in the Court’s eyes that the Family Court’s assessment of the father as “fixated on achieving a week about arrangement” has been entirely correct.  He was totally oblivious to the impact of his quest for equal time on his son, directly and indirectly.

13. There are other examples of capacity deficits and poor attitudes.  With great respect to both parents, the evidence that they gave about X’s participation in (hobby omitted) reflected very poorly on the Father.  Whatever the detailed arrangements actually were, and even if it were necessary for the Mother to separately register X for this activity, was it really necessary for the Father not to provide to the Mother the relevant uniform?  Was it really necessary for her to have to undertake the expense of a separate uniform?  The Father sought to rationalise his actions on the basis that the uniform for (hobby omitted) was no different to the school uniforms that X had in each of his parents’ households.  The parallels are not obvious to the Court.  (hobby omitted) was, at most, an activity undertaken once weekly, not something that X does every single day of the school week.

14. The evidence about X not attending Nippers is equally of concern and, once again, reflects poorly on the Father.  The Mother wanted X to be enrolled in Nippers.  She duly requested the Father to agree to this.  He would not commit to it.  The Father agreed that, therefore, X missed out.  He explained his failure to commit on the basis that the Court case was pending and he had it in his mind that the Orders would be changed and that this would potentially impact on attendance at Nippers.  The logic of this escapes the Court.  If Nippers was considered to be an activity that was beneficial to X, then how would any change in the existing order affect that?  Regrettably, the Court interprets this incident as yet another example of the Father failing to prioritise X’s needs over his own desires for a successful outcome of the Court case that would see an equal time arrangement put into place.

15. The Father’s insensitivity and lack of insight was also plainly apparent in the evidence he gave on the issue of speaking in the (omitted) language with X at changeovers.  At the outset, it must be recognised there can be no criticism whatsoever of the Father speaking in (omitted) with his son during the time that he spends with him.  There are obvious benefits of this to X, which his mother readily understands.  The focus is on why the Father would speak in (language omitted) to X in his mother’s presence.  The Father acknowledged a number of things.  He acknowledged that he did speak to X in (language omitted) at changeover, in his mother’s presence.  He agreed that X’s mother would not understand what was being said.  He agreed that the periods of time when he would be speaking in (language omitted) to X at changeover would be measured in minutes.  He would not agree, however, that in so doing he was excluding the Mother.  He agreed that she did not like what the Father did.  He could not understand why the Mother would feel excluded.  He would not agree that X might feel that his Mother was being excluded.  When all of these matters were put to him and he was asked whether he would continue to do this his answer was, “Yes.  It’s not a crime.”  Again, the Father fails to perceive how his own son might experience something like this.  It reflected poorly on the Father.  To infer that something should not be prohibited unless it is a crime is as nonsensical as to assert that a young child is not being pressured because he does not demonstrate the overt signs of trauma.

16. There was evidence about the Father’s interpretation of the current orders in relation to school holidays.  From the Court’s perspective, the dispute that the parents had about the interpretation of the order reflects the not uncommon issue of whether school holidays commence at the conclusion of the last day of school term or at some later time including, possibly, the first actual day of the school holiday that might be the succeeding Monday.  The Mother adopted the former interpretation, the Father the latter.  He made it very clear in cross-examination that he did not believe that he should sacrifice his weekends with X merely because school holidays had commenced.  In short, it was about him, not his son.  In reality, the problem stems from the manner in which the relevant order was drafted in the Consent Orders document made 21 September 2011.  That is a problem that will be rectified by Orders of this Court.  The real issue for the Court is the Father’s attitude.  His evidence was, “No, I miss out on weekend time.  I can’t have it eating into my own personal time with my son.”  It must be remembered that this is a case where the Mother is seeking to maintain the status quo in which the Father has five nights out of 14 with X.  She is not seeking to reduce the Father’s time.  However, the issue for the Court is whether it is in the child’s best interest to increase his time with his father.  As part of ascertaining the best interests the Court must look at the capacity of each parent to meet the child’s emotional needs, as well as their attitudes including matters about the responsibilities of parenthood.  Regrettably, the matters of evidence discussed above, which are by no means the entirety of the evidence on this topic, reflect poorly on the Father, and point towards the conclusion that it is not in X’s best interests to extend his father’s time.

Maturity, sex, lifestyle and background

1. There are no issues in this regard that are determinative in this case.  X is very lucky to have a (country omitted) heritage on his father’s side, one which his father is committed to encouraging in his son’s life, and also one which his mother is quite prepared to support and encourage.

Family violence and family violence orders

1. This is not a relevant consideration in this case.

An order least likely to lead to the institution of further proceedings

1. The matter has a long history already.  The Family Consultant openly opined that one way of bringing the litigation saga to an end would be to accede to the Father’s request, but for the fact that that is not in X’s best interests.  The Family Consultant was clearly concerned that the Father might persist in his quest, even if the Court were to say, “No” on this occasion.  The Father indicated to the Court, however, that that was not his intention.  The risk of future litigation cannot be ruled out in this case.  It may well be, for example, that at some future time, whatever time X has with his father should be undertaken in one block rather than two blocks because of the potential problems that that creates with the parents coming into contact with each other.  As will be seen, even if the Court concludes that it is not in X’s best interests to make an order in terms of that sought by the Father, there are other changes to the Orders that need to be made to minimise the prospect of future conflict between them.  Even if the Father’s fixation, as described by the Family Consultant, persists after the conclusion of this Court case, the likelihood of future proceedings is only one factor amongst others that needs to be taken into account. 

Conclusion about best interests

1. On balance, the Court believes that it is not in X’s best interests to increase the time that he spends with his father.  The Court recognises that it is a finely balanced case, however, the Court is concerned about the Father’s understanding of, and therefore the capacity to meet the emotional needs, of his son.  The Court believes the Father struggles to separate his own personal needs from his son’s needs.  The Father demonstrates lack of insight about what his son’s needs are and how they differ from his own.

The legislative pathway

1. This is a case where the parents agree to equal shared parental responsibility. The Father, whilst representing himself, was clearly aware that this meant that the Court had to consider equal time, or substantial and significant time. His opening statement and closing submissions clearly highlighted that an order for equal time could be made if it was in X’s best interests. Right at the commencement of the proceedings the Court focused the Father’s attention on section 65DAA(5). The Father was clearly familiar with the concept of reasonable practicability, having made reference to it in his opening statement. Out of abundant caution, he was provided with a copy of section 65DAA, and referred specifically to s. 65DAA(5) containing the definition of reasonable practicality. Indeed, the Court specifically drew his attention to paragraphs (b) and (c) focusing on the parents’ current and future capacity to implement an arrangement for equal time, and to communicate with each other and resolve difficulties which might arise in implementing an arrangement of the kind.

2. The Father’s argument in this regard was interesting, but unconvincing.  In the evidence of his cross-examination of the Family Consultant and the Mother, he gave examples of many decisions that the parents had made and many instances of what he described as parental cooperation.  Of course, he studiously avoided the other examples from the evidence of inability to cooperate and poor communication, which was obviously the subject of forensic examination by the Family Consultant, and in the cross-examination of the Father.

3. The Father’s case, and the evidence that he adduced, was fundamentally flawed. He advanced evidence, directly or indirectly, through cross-examination of the discussions that the parents had with each other. None of that evidence, however, established that those discussions showed a capacity to implement an arrangement or a capacity to communicate with each other and resolve difficulties. Indeed, many of the matters that he put to the Mother in cross-examination established precisely the opposite of what he contended. He cited, for example, several events at which both parents attended, as if mere attendance established anything let alone the reasonable practicality referred to in section 65DAA(5). The Mother agreed they jointly attended X’s soccer grading meeting, but her evidence was that “we ignored each other”.  The Father referred to all the competition soccer matches that they attend together, but the Mother explained that all that happened is that “we say, ‘Hello’”.  The Father referred to a meeting at the local (omitted) Shopping Centre in the context of an agreement about buying soccer boots for X.  The Mother put this into context explaining that, “we accidentally ran into you … we just had a chat”.  The Father gave as an example the parents’ participation in speech therapy for X and the Mother put this in context by explaining to the Father, “You have only been to one appointment last year and the remaining discussions are by email.”  The Father suggested that they frequently had discussions at changeover, but the Mother’s perspective on this was, “we don’t discuss much at all”.  He referred to their joint attendance at doctors’ appointments for X, but the Mother explained that the last one was “at least three or four years ago”.  The Father suggested to her that they had communicated well in relation to the treatment of X’s adenoids, but the Mother’s perspective on this was that we “ignored each other”.  The list goes on.

4. Moreover, the Father failed to appreciate that by proving to the Court that the Mother had, in all likelihood, misled the Family Consultant at paragraphs 16 and 17 of the Report, that this was in itself evidence to be gravely pessimistic about the capacity of the parents to achieve the matters set out in s. 65DAA(5)(b) and (c).

5. In seeking to apply the provisions of section 65DAA(5) to the facts of this case it would be very easy to avoid perhaps the most important consideration, that is, the practical impact of all of this on X. The Mother gave a particularly poignant example of the practical impact on X of these matters during cross-examination. She conceded what was put to her by the Father that they both attended X’s preschool graduation ceremony. She explained, however, that “we ignored each other and sat at opposite ends of the room”.  What transpired, based on what both parents told the Court, is that there was then an issue with which parent X would be photographed with.  Apparently X was looking one way towards his mother, and the other way towards his father, so that his graduation photo is in profile, showing neither parent.  Would that the said photograph have been tendered in evidence.  If the photograph is as appears to have been depicted in the evidence of both parent it graphically portrays how their son experiences the poor parental relationship. 

6. Paragraph 41 of the Family Report refers to “X’s sense of confusion and pressure about the parenting arrangement” and how this factor supported no change occurring to the current parenting arrangement.  From the Court’s perspective, if the Father’s contention were correct about equal time being reasonably practicable, X would not have this sense of confusion and pressure, and the photograph at his graduation would have been with X standing gleefully between his two proud parents instead of looking from one end of the room to the other trying to somehow resolve in his mind with which parent he should be photographed.

7. The evidence in this case plainly demonstrates that equal time is neither in X’s best interests, nor reasonably practicable.

Orders in X’s best interests

1. The reasons set out above should plainly indicate to the parents why the Court is not minded to increase X’s time with his father.  There are two important subsidiary issues.  The Orders need to be clarified in so far as they relate to school holidays periods.  The Mother’s Counsel proposed a minute in this regard and the Father indicated in closing submissions that he acceded to the proposal. Even if he had not so acceded, it is the order the Court would have made.  An order will be made to this effect. 

2. The second issue that arose related to religious holidays and this is addressed in order 2 of the orders sought by the Mother.

3. The focal point of the dispute appears to be existing order 3.3.7 which states as follows:

   3.3.7 On (omitted) and (omitted) for three nights with the father to advise the mother in writing of the dates he elects one month prior with the first day to commence at 9:00am if a non-school day or at the conclusion of school if a school day and conclude at 9:00am on a non-school day or at the commencement of school if a school day and such period may not be consecutive with any other period of time (noting that to satisfy this condition the father may forsake other time under Orders 3.3.1, 3.3.2 or 3.3.3).

4. The effect of the Orders is to give the Father additional time for up to three nights for the purposes of those religious holidays. 

5. The Mother’s concern about this order is set out at paragraph 31 of her Affidavit of 17 June 2015.  She believes that the Father does not need three days to celebrate either of the occasions in question.  She deposed that, for example, in 2013 the Father nominated three days pursuant to order 3.3.7 but the days were taken the following week.  She deposes to the same having occurred in 2014.  Her concern was that, by nominating time which pursuant to 3.3.7 did not coincide with these religious holidays, the Father was opportunistically spending more time with X especially on weekends and thus depriving X of weekend time with her.  In her evidence she emphasised that she had no objection in principle with X spending time with his father on important religious holidays such as those nominated at 3.3.7.  Her concern was when the time was spent pursuant to 3.3.7 did not coincide with the religious holiday in question.

6. The Mother’s proposal is set out in her response at Order 3, in these terms:

   That the child shall spend time with the father if he is not otherwise doing so on:

   a. The day of (omitted) from 9:00am (or conclusion of school the previous day if the previous day is a school day) until 9:00am the following day (or commencement of school if the day following is a school day); and

   b. The day of (omitted) from 9:00am (or conclusion of school the previous day if the previous day is a school day) until 9:00am the following day (or commencement of school if the day following is a school day).

7. The effect of the Mother’s proposal would be to limit the Father’s opportunity to spend special religious days with X to the day in question.

8. The Father also proposed a change to the orders in question at order 6.2 and 6.3 of his Amended Application filed 2 July 2015.  He was, in fact, seeking additional time, that is, 4 consecutive nights. The Father’s evidence about this is primarily set out at paragraphs 50, 51, 62 and 63 of his extensive Affidavit filed 2 July 2015.

9. What is not in dispute between the parents is that the religious holidays in question are significant events for the Father and for X.  However, the issue cannot be determined in a vacuum and so the Court must regard all of the other evidence in this case including the matters set out hitherto in these reasons for judgment. 

10. The Father was cross-examined about this issue.  The Court was able to form an impression about the importance of this issue from the Father’s evidence.  Despite the Father’s protestations that it was all about the religious holiday, the Court finds that in fact the Father has opportunistically used order 3.3.7 as “bonus time” with his son.  This finding is based on the strong inference drawn about his motives given that in both 2013 and 2014 he sought to celebrate these special days with his son well after the religious holidays had concluded.  In any other case, where there was less evidence about the parents’ inability to more effectively co-parent and communicate, the Father’s opportunism could be regarded in a different light.  Regrettably, and consistent with all of the other evidence before the Court, this is yet another example of the poor attitude in relation to parenting.

11. The order proposed by the Mother seems to achieve the desired objective, that is, to enable X to spend special religious holidays with his father, but it must actually coincide with the religious days in question. 

12. A separate issue, however, is whether the time should be limited to the day only, rather than the existing three-night period that is referred to in 3.3.7.  The Father’s evidence before the Court does satisfy the Court that the religious holiday in question extends over three days.  The Mother’s concern from her evidence did not appear to be X spending time with his father for the three days.  Her concern appeared to be what she considered the Father’s opportunism in claiming bonus time under the guise of a religious holiday, but not coinciding with it.  This seems to have been conceded by her Counsel during the hearing.  Accordingly Order 3.3.7 will be amended, but not in a way to reduce the Father’s time with X, but rather to ensure that his time is taken for the stated purpose, that is, to observe the religious holiday.  The order will provide greater precision about the time in question.

13. The Mother proposed the discharge of Orders that provided for X to spend time with his father on X’s birthday, the Father’s birthday and Australia Day.  The Mother’s evidence in this regard is set out at paragraphs 25 and 26 of her Affidavit where she deposes to the Father taking X out of school on both X’s birthday and the Father’s birthday.  The Mother observes that the Orders were put in place before X commenced school.  She submitted that the order was no longer appropriate.

14. Even the Father conceded that the order in its present form was no longer appropriate for X. The Father does not say much in his evidence about birthdays.  In his Orders, however, he proposes that an order would be made that results in each parent spending time with X on his birthday in alternate years and with the other parent being able to celebrate the birthday on the following day.  This seems to the Court to be a better alternative than to make no order whatsoever in relation to X’s birthday. The order will clarify these arrangements.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:      25 September 2015

Schedule One

Applicant Father’s proposed Minute of Order

1.      That the mother and father have an equal shared care parental responsibility for the child X born (omitted) 2008 in relation to the care, welfare and long term development of the child. The respective parents shall share parental responsibility in relation to issues that include but are not limited to:

(a) The education of the child – both current and the future;
     (b) The health of the child;
     (c) The religion of the child.

1. Equal shared care parental responsibility between the parents allows for the following:

   (a)Each party is to contact the other as soon as reasonably practicable upon the child being admitted to a hospital or receiving medical attention whilst the child is living with them;

   (b)Each party is to provide details of any visits to a Medical Practioner, Health Professional, Dentist and/or Hospital;

   (c)Each party is to provide details about any prescription or any other medication that the child may need to take;

   (d)Each party is at liberty to obtain all relevant medical records and consult the child’s medical practioners, hospital and/or other health care professionals to obtain any information they require and these orders are sufficient authority for that purpose.

   (e)Each party is at liberty to obtain all relevant school records pertaining to X and these orders are sufficient authority for that purpose.

   (f)Each party is to provide details about any changes to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.

2. That the child live with the father as follows:

   3.1With the father from 3:00pm or the end of school on Wednesday until 7:00pm Sunday evening;

   3.2With the father from 3:00pm or the end of school the following Wednesday until 9:00am Saturday morning;

   3.3This equal time shared care parenting arrangement will remain in place except for suspension provisions as outlined in Orders 4, 5 and 6.

3. That the father spend time with the child during the school holiday period as follows:

   4.1Commencing with the holidays at the end of term 1, term 2, term 3 from Monday 9:00am until 9:00am on the middle Monday of the school holiday period;

   4.2Commencing with the summer holiday period at the end of term 4 and then of each alternate week from Monday 9:00am until 9:00am the following Monday. The father is to have the first week in even numbered years and the mother is to have the first week in odd numbered years.

4. That the time the father spends with the child pursuant to Order 3 and 4 be suspended as follows:

   5.1     From 9:00am 24 December until 9:00am 27 December in each year.

   5.2     From 9:00am Good Friday until 9:00am Tuesday following Easter Monday.

   5.3 On Australia Day from 2:00pm 25 January until 2:00pm 26 January in even numbered years.

   5.4On Australia Day from 2:00pm 26 January until 2:00pm 27 January in odd numbered years.

   5.5     On Mother’s Day from 9:00am until 9:00am the next morning.

   5.6On the child’s birthday from 3:00pm (omitted) until 9:00am (omitted) in each even year and from 3:00pm (omitted) until 9:00am (omitted) in each odd year.

   5.7On the mother’s birthday from 3:00pm (omitted) until 9:00am (omitted) in each year.

5. That the time the mother spends with the child pursuant to Order 3 and 4 be suspended as follows:

   6.1     On Father’s Day from 9:00am until 9:00am the next morning.

   6.2On (omitted) for four consecutive nights with the father to advise the mother in writing of the dates he elects one month prior. The first day is to commence at 9:00am and conclude at 9:00am the morning after the fourth night.

   6.3On (omitted) for three consecutive nights with the father to advise the mother in writing of the dates he elects one month prior. The first day is to commence at 9:00am and conclude at 9:00am the morning after the third night.

   6.4On the (omitted) New Year from 9:00am to 9:00am the following morning with the father to advise the mother in writing of the date he elects one month prior.

   6.5On the child’s birthday from 3:00pm (omitted) until 9:00am (omitted) in each odd year.

   6.6On the child’s birthday from 3:00pm (omitted) until 9:00am (omitted) in each even year.

   6.7On the father’s birthday from 3:00pm (omitted) until 9:00am (omitted) in each year.

   6.8On Australia day from 2:00pm 26 January until 2:00pm 27 January in even numbered years.

   6.9On Australia Day from 2:00pm 25 January until 2:00pm 26 January in odd numbered years.

7.  For the purpose of facilitating change over:

7.1If the changeover is to take place on a day when the child is attending school then the changeover shall take place at that location and the time of changeover will instead be at the commencement or conclusion of that school day whichever is closest to the time otherwise specified in these Orders.

7.2Where such change over does not occur at school the mother shall deliver the child to the father’s residence at the commencement of the father’s time with the child and the father shall return the child to the mother’s residence at the conclusion of his time with the child and either parent may arrange for a representative to both hand over the child and collect the child on his/her behalf if he/she so wishes.

1. Neither party shall denigrate the other to or in the presence or hearing of the child or allow the child to be in presence of any other person doing so.

1. That if either party makes a subsequent application to the Court seeking an Equal Time Shared Care parenting arrangement, the principles in Rice v Asplund will apply to the application.

Schedule Two

Respondent Mother’s proposed Minute of Order

1. That the Application of the Father filed 3 April 2014 be dismissed.

2. That the Orders made 21 September 2011 be amended by discharging the following orders:

   a.3.3.7;

   b.3.3.8;

   c.3.3.9;

   d.3.3.10;

   e.3.4.6; and

   f.3.4.7.

3. That the Child shall spend time with the Father if he is not otherwise doing so on:

   a.The day of (omitted) from 9:00am (or conclusion of school the previous day if the previous day is a school day) until 9:00am the following day (or commencement of school if the day following is a school day); and

   b.The day of (omitted) from 9:00am (or conclusion of school the previous day if the previous day is a school day) until 9:00am the following day (or commencement of school if the day following is a school day).

4. That for the purpose of defining school holiday periods, school holiday periods shall commence at the conclusion of school on the last school day of each term and end at the commencement of school on the first day of the following term regardless of whether the Child’s school has a pupil free day or days.

1. That time the Child would otherwise spend with each parent during school holidays shall be suspended except as provided for in order ___.

2. That the Applicant pay the respondent’s costs and incidental to these proceedings.