E and S

[2010] FCWA 3

[2010] FCWA 3

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	E and S [2010] FCWA 3
CORAM	:	THACKRAY CJ
HEARD	:	18, 19 AUGUST 2009
DELIVERED	:	6 JANUARY 2010
FILE NO/S	:	PTW 4980 of 2007

BETWEEN : E

Applicant/Mother

AND

S

Respondent/Father

Catchwords:

CHILDREN - Equal shared parental responsibility - Substantial and significant time - With whom a child lives - Best interests of a child - Interim orders made

Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Mr D Childs

[2010] FCWA 3

Solicitors:

Applicant	:	DCH Legal Group
Respondent	:	Gibson & Gibson

Case(s) referred to in judgment(s):

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

CDJ & VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
G & C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404

[2010] FCWA 3

1 [Ms E] and [Mr S] are unable to agree how much time their six year old

daughter [Tanya] should spend with each of them. Tanya’s father proposes an equal shared care arrangement, whereas Tanya’s mother has serious concerns that even the current five nights a fortnight with the father is too much for Tanya.

Orders sought

2 The orders sought by the mother were contained in her Papers for the Judge.

She proposed that Tanya primarily live with her and spend time with the father on a two week rotation as follows:

• in the first week from 3.30 pm on Wednesday until 3.30 pm on Thursday;

• in the second week from 3.30 pm on Thursday until 8.30 am on Monday.

3 The mother also proposed an equal sharing of school holidays, with the

Christmas holidays being taken on a week-about basis. In her oral evidence the mother said one week was too long for Tanya to spend away from either parent during holidays and suggested that Tanya should be away for no longer than three or four days.

4 The mother sought a variety of other orders concerning Tanya, almost all of

which were agreed. Amongst these was an order that all handovers which take place
on a school day should occur at Tanya’s school.

5 The orders sought by the father were set out in a Minute filed in March 2009. The main point of difference from the mother’s proposals was his request for a week-about shared care arrangement. He also proposed that the time spent by each parent with Tanya during the Christmas school holidays be taken in one block period.

6 The father also sought an order that Tanya not be left unsupervised with the

maternal grandfather. He proposed that both parties be required to undergo random drug testing. He also sought an order that if the mother was unavailable to care for Tanya for more than two hours, he should be the “babysitter of first resort”.

Brief background

7 The mother is 36 years of age and at the time of trial was in her final year of

studies to become [qualified]. The father is 44 years of age and has his own
[business].

8 The parties had a very short relationship which commenced in the last few months of 2002 and ended in April/May 2003. They never lived together.

9 There was one child of the relationship, Tanya E-S. Tanya was born in November 2003.

10 The father is living with [Ms C]. It appears they commenced cohabitation

towards the end of 2007, although they have been in a relationship for longer. Ms C
works part-time in the father’s [business].

[2010] FCWA 3

11 The father and Ms C have a son, [Dan], who is now one year old. There is

another child living in their home, [Ingrid], who was born in January 2004. Ingrid is the child of a relationship between the father and a heroin addict, who has no contact with Ingrid. Ingrid was born with a methadone (and possibly heroin) dependency. It will be noted that Ingrid is just a few weeks younger than Tanya.

12 The father was present at Tanya’s birth and commenced spending time with her

when she was a baby. Although the parents’ relationship had ended long before her birth, the father was able to see Tanya in the mother’s home and was also permitted to take her on short outings. The father started having Tanya for one night overnight when Tanya was about one year old and his time with her thereafter slowly increased.

13 The mother commenced proceedings in September 2007 when the father failed

to return Tanya after a contact visit. Tanya was returned before a recovery order was issued. At that time orders were made by consent for the father to have time with Tanya.

14 These orders were shortly thereafter amended in November 2007 to provide for the father to spend time with Tanya:

• each alternate week from Wednesday afternoon to Thursday afternoon;

• each intervening week from Thursday afternoon to Sunday afternoon;

• for one week during the second half of January 2008 to permit the father to take Tanya to [the Eastern states] for a holiday.

15 The order also provided for the parties to undergo random drug testing.

16 At a further hearing on 16 March 2009 orders were made until further order of the Court for Tanya to spend time with the father:

• each alternate week from 3.30 pm Wednesday to 3.30 pm Thursday;

• each intervening week from 3.30 pm Thursday to 8.30 am Monday.

17 There was some confusion associated with the orders made on 16 March 2009. It appears there was an error in paragraph 6 which dealt with arrangements for the April 2009 school holidays. It was agreed between the parties that those holidays would be shared but the orders as pronounced reversed the sequence in which the parents were to take their portion of the holidays. More confusing, however, is the claim made by the mother in a subsequent affidavit (and not denied by the father in a responding affidavit) that those orders provided for an ongoing equal sharing of school holidays, including the summer school holidays on a week-about arrangement. The order on its face makes no such provision and as I understand the chronology of Court orders, there is no order in place for school holiday contact. Nevertheless, for at least some of the holidays subsequently the parties appear to have proceeded on an assumption that there was such an order.

18 In any event, what is clear is that the March 2009 orders provided for the father

to have Tanya for five nights every fortnight. At the March 2009 hearing counsel for the mother indicated that she would be agreeable to the father having Tanya six nights

[2010] FCWA 3

in every fortnight but there was no agreement as to when this regime would
commence.

19 During the course of negotiations at the March 2009 hearing, the father made an

allegation that the mother had disclosed to him (many years previously) that she had been sexually abused by her father and/or one of her father’s friends when she was an infant. The allegation was then repeated in an affidavit on 2 April 2009.

20 The matter was listed for trial before me in May 2009 to deal with the discrete

issue of the allegation concerning the maternal grandfather. However, by the time of trial, the mother’s position had changed dramatically. This came about largely as a result of information she had obtained when inspecting documents produced under subpoena concerning the father’s criminal record. She was no longer prepared to allow the father any time with Tanya unless it was supervised. In light of these developments, the proceedings were adjourned for a longer and more comprehensive trial in August 2009.

21 The mother’s position had changed again by the time of trial in August 2009. At

the commencement of the hearing I was informed that the mother was no longer proposing a reduction in the father’s time with Tanya, nor was she seeking that his time be supervised. Her proposal was that the father would continue to have five nights a fortnight; however, in his closing address counsel for the mother submitted that the evidence was such that I should consider reducing the father’s time. He proposed that any order made should be on an interim basis, so as to allow an opportunity for matters to be reconsidered if Tanya continued to demonstrate anxiety about going to the father as has occurred on some occasions.

Credibility

22 The mother was a most impressive witness. She is clearly an intelligent and

articulate woman and carries herself very well. She made concessions wherever they were warranted and was not successfully challenged on any significant matter in cross-examination. This is not to say that I necessarily accepted all of her evidence. She is clearly very protective of Tanya’s welfare and (in my view understandably) anxious about what happens to her when she is not in her care. This protectiveness and anxiety may have resulted in her slightly exaggerating some of her concerns about Tanya.

23 The father did not make as favourable an impression. He had no alternative

other than to admit he had lied under oath in earlier proceedings involving Ingrid. He said in an affidavit in those proceedings, “I have never used illegal drugs”, when in fact he had been using marijuana since about age 16 and amphetamines since about age 19 or 20. He also admitted it was also untrue of him to say, as he did in that affidavit, that he did not drink alcohol at home.

24 I found the father’s evidence on a large range of issues to be unreliable.

Ultimately I formed the conclusion that wherever there was any discrepancy I should prefer the evidence of the mother. In particular, I accepted her strong denial that she had ever told the father that she had been sexually abused by her father or by one of

[2010] FCWA 3

her father’s friends. Tanya’s father had numerous opportunities over a period of years in which to raise this very serious matter, but failed to do so until March 2009 (on a day when the maternal grandparents were at the Family Court supporting the mother). His explanation for not raising the allegation earlier was entirely unconvincing – i.e. that “it was a pretty big secret to keep” and he did not know what to do with the information.

25 I also accept the submission of counsel for the mother that the father “gave the

impression of blithe unconcern” when confronted with the details of his prior criminal record, including an assault on a former partner. He gave no indication of any embarrassment about his conduct and if anything, he gave the impression that he was somewhat proud of himself. He frequently smiled when being cross-examined about these matters as if they were somebody else’s concern and not his own.

26 The father’s partner, Ms C, appeared to be a pleasant young woman. Although I

formed the impression that she would be a trustworthy and reliable person, I was not convinced that her relationship with the father is quite as trouble free as she claimed. I was therefore left to wonder whether there might be some truth in the story that I am satisfied Tanya took home to her mother of having witnessed at least one very unpleasant scene (involving the scattering of the contents of a yoghurt container) when the father allegedly became annoyed with Ms C. I am not prepared to make a positive finding about this incident as the mother’s evidence was hearsay and was given only in re-examination. I do, however, accept the submission of the mother’s counsel that Ms C is a very different person to the mother, in that she does not give the impression she would be able to stand up to the father in any confrontation.

27 The maternal grandfather and grandmother (who have been divorced for some

time) were both cross-examined, as was the current husband of the maternal grandmother. None of these witnesses was successfully challenged in cross-examination. All of them presented as respectable and trustworthy people. The only significant matter where their credibility was of relevance related to the claims made by the father about conversations with the maternal grandmother and her husband concerning the sexual abuse allegation. I had no hesitation in accepting their evidence over that of the father.

Applicable law

28 As the parties were never married, the proceedings fall to be determined under

the Family Court Act 1997 (WA). In the discussion that follows, reference will nevertheless be made to cases decided under the Family Law Act 1975 (Cth). The relevant provisions of the two Acts are substantially identical, with all amendments made to the Commonwealth legislation having been mirrored in the State legislation. In order to assist understanding of the cases, I intend to refer to the section numbers of the Commonwealth Act. The corresponding State provisions can be easily ascertained by reference to the annotations embedded in the Family Court Act 1997.

[2010] FCWA 3

Best interests and the objects of the legislation

29 Section 60CA makes clear that I must treat Tanya’s best interests as the

paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects 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;
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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.

30 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:

…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

31 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:

(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…

32 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this concerning the 1995 amendments to that Act:

It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the

[2010] FCWA 3

children), in the approach by the Court in the adjudication of disputes and,
more broadly, in the attitudes of society generally.

33 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):

In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.

The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.

The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.

Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.

Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-

[2010] FCWA 3

relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.

The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.

This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.

As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.

In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”…

In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this

[2010] FCWA 3

and other courts which deal daily with the welfare or best interests of
children.

34 It will be noted that the Full Court made many references to s 65E, which was

the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the legislation still contemplates individual justice.

Parental responsibility and the outcomes the Court must consider

35 In enacting the 2006 amendments, Parliament has given legislative voice to what

was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. In the present case the parents agree there should be an order for equal shared parental responsibility.

36 As I intend to make an order for equal shared parental responsibility, I am required by the legislation to consider two specific outcomes.

37 First, by operation of s 65DAA(1), the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court is then required to consider making an order to provide for the child to spend equal time with each parent.

38 Second, by operation of s 65DAA(2), if the Court decides that an “equal time”

order would not be in the child’s best interests or would not be reasonably practicable, the Court must consider whether or not the child spending “substantial and significant time” with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend “substantial and significant time” with each parent. (The expression “substantial and significant time” is defined by s 65DAA(3).)

39 The Full Court has said in Goode and Goode (2006) FLC 93-286 at [64] that the juxtaposition of the paragraphs in ss 65DAA(1) and (2) “suggests a consideration tending to a result, or the need to consider positively the making of an order” for equal time or substantial and significant time – provided such outcomes would be in the child’s best interests and reasonably practicable. The Full Court also said in Goode at [72] that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their child’s life, both as to parental responsibility and as to time spent with the child. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the child’s best interests and reasonably practicable.

[2010] FCWA 3

Controversy concerning the interpretation of s 65DAA

40 In a paper delivered at the National Family Law Conference in Adelaide in April

2008, the eminent commentator, the Honourable Professor Richard Chisholm, expressed concerns about the drafting of s 65DAA and the Full Court’s analysis of that provision in Goode, in particular the reference to s 65DAA as suggesting “a consideration tending to a result”. In order to appreciate Professor Chisholm’s argument, it will be helpful to set out s 65DAA(1), which I have earlier only paraphrased:

(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.

41 Professor Chisholm expressed his concerns about this subsection and the Full Court’s analysis in Goode as follows [footnotes omitted]:

The drafting problem is this: since the child’s best interests are the paramount consideration, once the court has found that a particular order (here, equal time) is in the child’s best interests, and is reasonably practicable, so far as I can see the court would obviously go ahead and make that order. Doing anything else would be making an order that was not best for the child, and doing that would seem to be contrary to the principle that those interests are to be the paramount consideration. The word ‘consider’ is therefore mis-used in paragraph (c), because it suggests that there remains something else to be taken into account in deciding whether to make the order. The subsection should have stopped before paragraph (c).

The problem is not quite solved by the Full Court’s analysis in Goode. The Full Court quotes some perfectly appropriate authorities on the meaning of ‘consider’ – they contain no surprises. But then it says that the meaning of ‘consider’ in those decisions is ‘not entirely apposite to the meaning of the word in s 65DAA’. This is said to be so

because the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, of the need to consider positively the making of the order, if [the conditions in paragraphs (a) and (b) are met.]

[2010] FCWA 3

The problem with this, I think, is that it treats the word ‘consider’ as having the same meaning in all three paragraphs. What I think the Full Court should have said is that the authorities cited were entirely applicable to the meaning of the word ‘consider’ in paragraph (a) and (b). As to paragraph (c), I think it should have said that despite the word ‘consider’ in paragraph (c), once the court has found that an order for equal time is in the child’s best interests, and is reasonable practicable, since the child’s interests are paramount, the court will ordinarily, if not inevitably, make that order. It is in this sense, and this sense only, that it can be said to be ‘tending to a result’.

The reason I think it worth bothering with this apparently pedantic point is that if the Full Court’s remark about ‘tending to a result’ is not understood as confined to paragraph (c), it could be taken to indicate that s 65DAA as a whole tends towards orders for equal time; or, in other words, that it creates something like a presumption favouring equal time. I am confident that the Full Court did not mean this, since such a statement would be quite wrong. It is crystal clear that the court’s obligation under the section is, essentially, to pay attention to whether equal time would be in the child’s interests – and, if it is, then of course to make the order. ‘Consider’, in paragraphs (a) and (b), means precisely this, as it does in the administrative law cases cited by the Full Court. The quote from the Full Court would be correct if their Honours had said that the administrative law definitions were not apposite to the meaning of the word ‘consider’ in s 65DAA(c). I suggest that this is what the Full Court must have meant to say.

42 I would venture, with utmost respect to Professor Chisholm, an alternative

approach to the interpretation of s 65DAA, which would have the benefit of allowing the word “consider” to be interpreted consistently wherever it appears in the section. As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 [my emphasis added]:

I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.

43 I acknowledge these words may be treated as “the counsel of perfection” (as

suggested in the discussion in Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed., Butterworths, Australia, 2001 at [4.5]), and that it is legitimate for

a court to give a different interpretation to the same word, even when construing the words of just one section of an Act. Nevertheless, in my view, an approach which allows the same meaning to be given to the critical word “consider” in all of the many places in which it appears in s 65DAA is to be preferred over an approach requiring

[2010] FCWA 3

differing meanings, provided the interpretation is consistent with the objects of the Act

and the paramountcy provision.

An alternative approach to s 65DAA

44 The interpretation I propose for the word “consider” achieves the objective of

consistency and also sits comfortably enough with the formulation in Goode concerning “the need to consider positively” the making of certain orders. I accept, however, that it may not sit quite so comfortably with the alternative formulation proposed in Goode of “a consideration tending to a result”.

45 My interpretation of “consider” stems from asking two questions: Why would

Parliament merely require the Court to “consider” making an order that is both in the best interests of a child and reasonably practicable when the Court’s fundamental obligation is to make orders that are in the best interests of the child? Why not instead require the Court to make such an order?

46 The answers can be provided by recognising that there may be a number of possible outcomes that could be seen as promoting the best interests of the child and being reasonably practicable. As was said in the High Court in CDJ & VAJ (1998) 197 CLR 172 (per McHugh, Gummow and Callinan JJ) at [152], “It is a mistake to think that there is always only one right answer to the question of what the best interests of the child require … best interests are values, not facts.” Life is full of occasions when two different but tempting scenarios present themselves, with what may appear to be an equal measure of “pros and cons”. When faced with such alternatives, the competing factors are usually weighed before identifying those that ultimately make one outcome more appealing than another. Sometimes the final decision is made on the strength of nothing more than a “gut feeling” on the part of the individual, couple or family making the decision. On other occasions, it will be a matter of deciding whether short-term or long-term advantages are to be given greater weight.

47 The judicial officer allotted the task of making decisions for families employs

a process of reasoning which arguably is not dissimilar to that employed by families when weighing up the benefits of competing scenarios. One important difference, of course, is that families might choose the option that is seen as best for the family as a whole (or sometimes just for one member of the family), whereas the judicial officer must treat the child’s best interests as paramount.

48 The judicial officer will carefully assess all of the available outcomes and select

the one that stands out from the others. Selection of that outcome does not mean that the other options were not in the child’s best interests, it just means that the option which found favour was considered the “best” available. Having undertaken this process and come to a decision, the judicial officer will have discharged the legislative requirement to “consider” making all orders that would have been in the child’s best interests.

49 This approach to the interpretation of “consider” can be best understood when

applied to that range of cases in which there appears to be only a marginal difference between the competing proposals. Take, for example, a dispute as to whether a child

[2010] FCWA 3

will attend one excellent school instead of another excellent school. Or a dispute about where a child will live, when both parents are outstanding parents, but a shared care regime is impracticable. It would be straining the language in such cases to say that the proposal which was rejected was not in the child’s “best interests”.

50 Discussion of the legislation has hitherto proceeded on an unstated assumption

that there can be only one outcome that is in a child’s best interests. If indeed such an assumption was correct prior to 2006, the way in which Parliament has chosen to amend the legislation requires reassessment of the language of the statute.

The primary and additional considerations

51 As will be apparent from the discussion above, my overriding objective in

navigating the complex statutory pathway must be to make the orders most likely to promote Tanya’s best interests. The legislation itself specifies those matters I must take into account in determining what orders I should make. Section 60CC divides these into what are called the “primary considerations” and “additional considerations”.

52 This dichotomy between “primary” and “additional” considerations was

introduced by the 2006 amendments. There has not been a great deal of judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364:

The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

53 See also Champness & Hanson (2009) FLC 93-407 (Thackray, O’Ryan and Benjamin JJ) at [101] to [103] and Mulvany & Lane (2009) FLC 93-404 (per May and Thackray JJ) at [84].

54 I also concur with the views expressed on this topic by Professor Chisholm in

his paper “The Family Law Amendment (Shared Parental Responsibility) Act 2006:
An Overview”, in which he said:

It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily

[2010] FCWA 3

outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.

55 It is within this legal framework that I will proceed to determine this case.

The primary considerations

56 I turn first to the primary considerations:

The benefit to the child of having a meaningful relationship with both of the child’s parents

57 Although this factor has been afforded a position of prominence in the

legislation, the term “meaningful relationship” has not been defined by the Act. However, I have had the benefit of reading Brown J’s careful analysis in Mazorski v Albright (2007) 37 Fam LR 518 concerning the various meanings of “meaningful”. I respectfully adopt her Honour’s analysis and agree that it is appropriate to proceed on the basis that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” and that it is “a qualitative adjective, not a strictly quantitative one”.

58 It will be observed also that the focus of this consideration is on “the benefit to

the child” of the child’s relationships with both parents. In this regard, I respectfully concur with the analysis of Bennett J in G & C [2006] FamCA 994 in which her Honour said that the benefit to a child of having a relationship with both parents cannot be treated as “a given” and that it is necessary for the Court to “evaluate the extent to which a meaningful or significant relationship with both of [the child’s] parents is going to be beneficial and of advantage to [the child] into the future”. (Her Honour’s reasoning, and that of Brown J in Mazorski v Albright, has been approved by the Full Court in McCall & Clark [2009] FamCAFC 92.)

59 I consider it is of importance to Tanya to have a meaningful relationship with

both her mother and her father. I am satisfied that she already has such a relationship with each of them and that she would continue to have a meaningful relationship with them regardless of whether I make the orders sought by the mother or by the father. In fact, I consider she could continue to have a meaningful relationship with her father even if she were to spend somewhat less time with him than she does at present.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

60 I am satisfied that Tanya will not be subjected to, or exposed to, abuse, neglect

or family violence in the home of the mother. I have already indicated that I am satisfied there is no substance in the allegations of sexual abuse made about the

[2010] FCWA 3

grandfather. Apart from many other factors suggesting the claims lack substance, they were not put to the grandfather in cross-examination – much to his chagrin, as he indicated at the conclusion of his evidence.

61 Although the mother has expressed some concerns about the standard of care the

father provides for Tanya, I doubt she would be abused or neglected in the home the father shares with Ms C. I do, however, have concerns about the possibility that Tanya will be exposed to family violence. “Family violence” is defined in s 4 of the Act as:

conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

62 The father’s past record (and current demeanour) do not provide me with a great

degree of satisfaction that he is likely to refrain from physical violence, or at least high level verbal aggression and abuse, towards intimate partners. I consider that exposure to such violence and/or abuse and aggression would be harmful for Tanya.

63 The father’s criminal record includes drink driving related offences (four in

total), malicious injury, offensive behaviour, malicious damage, unlawful entry, assaulting a public officer and assault occasioning bodily harm. It is noteworthy that a number of these offences were committed when the father was much younger and that the last occasion he received a criminal conviction was for the assault on his former partner in November 2001. Hopefully this is some indication that the father has become more able to control his temper/behaviour as he has matured.

64 I also have some concerns about the father’s abuse of alcohol and drugs.

Although he accuses the mother of having a drug problem, it is apparent he has had a serious problem with alcohol in the past (four drink driving related convictions and one admitted bed wetting incident). He has also used both amphetamines and marijuana from an early age. I accept that the father’s drug use was one of the reasons the mother did not want to continue with their relationship, even though she was herself smoking marijuana.

65 Notwithstanding his past history, I would probably have been inclined to accept

the father’s evidence that he has not used alcohol to excess for some time and is no longer consuming drugs. However, given that he has previously blatantly lied on oath about his drug/alcohol consumption, he has, in my view, forfeited the right to have a positive finding in his favour. I remain hopeful, however that he will not abuse drugs or alcohol in the future.

Additional considerations

66 I now turn to discuss those of the additional considerations that appear to be

relevant.

[2010] FCWA 3

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

67 Tanya was only five years of age at the time of trial. I therefore do not consider

this factor to be of much significance. I do, however, accept that Tanya has expressed to her mother her desire that she not spend long periods of time away from her. I accept also she has told Ms C that she wants to spend more time with the father. The father gave no evidence to indicate she had made any similar remarks to him.

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)

68 Tanya was breastfed until she was 20 months old and the mother did not return

to work until she ceased breastfeeding. Tanya has primarily lived with her mother, although she has been spending increasingly longer periods of time with her father. I would consider it highly likely that her primary attachment would be to her mother, although I am also satisfied she also has a very good relationship with her father. I am also satisfied that Tanya has a very good relationship with her maternal grandparents and with their spouses.

69 The mother acknowledges that Tanya has an “excellent relationship” with both

Ms C and Ingrid. She also acknowledges that Tanya is “very fond” of Dan. She readily acknowledged that Tanya benefits from her association with Ingrid and Dan.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

70 I am quite satisfied that the mother will facilitate and encourage a good

relationship between Tanya and the father. The evidence indicates that she has “bent over backwards” to encourage a relationship between father and daughter – although he appears to have no appreciation at all of the lengths to which she has gone to ensure he is an important part in Tanya’s life. She allowed him to attend her birth. She permitted him time with Tanya from when she was a very young baby. She even expressed milk to allow him to take Tanya away from her home for longer periods than would otherwise have been possible. She has also sought to include his family in Tanya’s life.

71 I am not at all satisfied about the willingness and ability of the father to

encourage a close and continuing relationship between Tanya and the mother. The evidence, and in particular the documentary evidence, indicates that the mother’s efforts to promote the relationship have been rebuffed repeatedly by the father, often in aggressive and abusive terms.

72 I am also concerned that the father denigrates the mother, if not to Tanya then

within her hearing. I also accept the mother’s evidence that the father abuses her in

[2010] FCWA 3

foul terms when she telephones his home, even for pre-arranged telephone contact
with Tanya during times she has been with the father.

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

73 There would be a significant effect on Tanya if orders were to be made as sought

by the father. Tanya at present spends no more than four nights in a row away from the mother (save during holidays). On the father’s proposal she would routinely be away for seven nights in a row. I am satisfied that the nature of the relationship between the child and the mother is such that this would have an adverse impact on Tanya.

74 I accept there is a possibility that Tanya’s relationship with the father would

grow even stronger if Tanya was to spend more time with him. Such an arrangement would also increase her opportunities to spend time with and improve her relationship with Ms C and with Ingrid and Dan. Conversely, it would reduce the opportunity she has to spend time with her maternal grandparents and their partners.

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

75 The parents live in relatively close proximity and this factor is not an issue.

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

76 I am quite satisfied that the mother can provide for all of Tanya’s physical,

emotional and intellectual needs. She has provided a high quality of care for her. She has also ensured she has plenty of opportunity to interact with other children (given that she is an “only child” in the home of the mother).

77 I am satisfied that the father (together with Ms C) can provide for Tanya’s

physical needs. The father is also capable of providing for her intellectual needs to the extent that he would ensure that she attends school and does her homework. There is no need for me to say more concerning the respective capacities of the parents to provide for Tanya’s intellectual needs.

[2010] FCWA 3

78 I am satisfied that the father’s capacity to provide for Tanya’s emotional needs is

less well developed than that of the mother. The mother presented as a warm and empathetic person who would have a very good understanding of her daughter’s needs. The father did not present as an empathetic person and his past record leads me to have concerns about his capacity to cope with Tanya’s changing emotional needs as she matures.

79 I was concerned about aspects of the evidence which suggested that the father

does not have a good attitude towards women. His record in that regard speaks for itself; however, I also noted the sneering way in which he referred to his former partner having gone to [the Eastern states] to do “her little study thing”.

80 I note also that the father did not deny the mother’s claim that when she

proposed having a female friend present to support her during the birth of Tanya, the father’s response was to say he also wanted one of his male friends present, even though the mother scarcely knew the man. (The mother had kept the father informed and involved in the pregnancy and invited him to attend the birthing classes, although he attended only one.)

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

81 Tanya is still a young girl. I accepted the mother’s evidence concerning her

apparently increasing (albeit occasional) resistance to leaving her for extended periods of time. For example, the father himself acknowledged that on 3 July 2009 Tanya was “mildly hysterical” at the commencement of a holiday visit with her father (she having apparently returned from the regular longer contact visit only a day or so before).

82 The mother’s successful attempts to gradually make Tanya used to spending

time away with the father received a setback when the father retained her after a visit in 2007. However, the visits have generally gone very well and it is troubling that Tanya’s reluctance to go on the visits seems to have been increasing rather than subsiding as might have been expected as she has got older. It seems to me quite possible that the father’s abusive and demeaning conduct towards the mother has been upsetting Tanya and this may be contributing to the problem. The fact that she generally settles down quickly after she goes into the father’s care does not necessarily mean that there is not a problem – it may mean only that Tanya believes her emotional needs will be better met by not demonstrating any concerns she has about being parted from her mother.

83 I should note that the father at no stage provided an acceptable excuse for

having retained Tanya in 2007 after a regular visit. The father says it was “entirely unnecessary” for the mother to have commenced proceedings for a recovery order at that time. He said he was entitled to have Tanya for three days anyway and he only kept her two extra nights. I found his claim, belatedly advanced in the witness box, that the mother had consented to the additional time to be a fabrication.

[2010] FCWA 3

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

84 The mother has at all times demonstrated an excellent attitude to Tanya and the responsibilities of parenthood.

85 The father has also generally shown an excellent attitude to Tanya and the

responsibilities of parenthood (save for his abuse of Tanya’s mother and his failure to
engage with her in decision making about Tanya).

86 One area of concern, however, is his failure to pay any child support for Tanya.

The father claims to earn insufficient income to be able to afford child support; however, the photographs of his home show that it is very well furnished, with two flat screen televisions. He has also been able to fund legal costs in the vicinity of $20,000. He has fairly recently sold his home and has about $100,000 available but none of this has made its way to Tanya’s mother.

87 The father told the Child Support Agency in June 2007 he was about to shut

down his business but this never occurred. Although the issue was not explored in any detail, I am not convinced that the father is incapable of obtaining employment which would put him in a position to make a financial contribution to the welfare of his daughter. I nevertheless recognise that he has Tanya in his care for a significant period each fortnight and is entirely responsible for her maintenance during that period.

88 The failure of the father to pay child support has been exacerbated at times as a

result of him not collecting Tanya when he was due to have her. This resulted in the mother having to cancel jobs she could otherwise have undertaken to help her provide for Tanya’s needs. The extent to which this occurred was unclear given the vague nature of the mother’s evidence and the impression I gained was that this was no longer the problem that it had been in the past.

Any family violence involving the child or a member of the child’s family

89 There was no evidence of any violence in the relationship between the mother

and the father save for the allegation the mother made late in the proceedings that the father had once thrown a glass at her in a restaurant. Although this allegation was raised very late and although the father denied it, I am satisfied something like this occurred.

90 The fact there was no violence in the relationship of Tanya’s parents needs to be

considered in the context that they never lived together and in light of the fact that
their romantic association was short lived.

Any family violence order that applies to the child or a member of the child’s family, if —

(i) the order is a final order; or

(ii) the making of the order was contested by a person

[2010] FCWA 3

91 There are no family violence orders, although the father acknowledged a former

partner sought two restraining orders against him, one of which was after he assaulted
her. The father did not contest the order.

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

92 It is usually desirable to make the order least likely to lead to further proceedings

but it is not always easy to identify what that order would be. Initially both parties were seeking final orders; however, in his closing address counsel for the mother suggested that any orders made should be on an interim basis only. I will deal with this issue later. It is sufficient to say at this point that in some cases it is not desirable to make final orders as it may be in the child’s best interests for arrangements to be monitored and brought back to Court for review in the event the arrangements are not working adequately.

Any other fact or circumstance that the court thinks is relevant

93 I do not consider there are any other matters that require consideration.

Section 66C(4) factors

94 I am required to consider a variety of other matters in s 66C(4). The provision is

lengthy and I will not repeat it. I have already dealt adequately with the relevant
matters.

Parental responsibility

95 The parents have consented to an order that they have equal shared parental

responsibility for Tanya. I have considerable reservations about this, given the way in which the father has already approached important issues concerning Tanya’s welfare.

96 I have in mind, in particular, his ongoing failure to respond to the mother’s

efforts to engage him in the process of decision-making about Tanya’s schooling. I note also that the father enrolled Tanya in a dancing class without consultation

97

with the mother and then re-enrolled her over the mother’s objection.

98 I was also concerned about the conduct of the father in making arrangements for

Tanya to have her ears pierced (at age 4) without any consultation with the mother. I consider his behaviour was reprehensible and demonstrated a lack of understanding of how issues such as these ought to be discussed between parents. The mother’s subsequent thoughtful letter to the father and his belligerent response (part of Exhibit 9) speak volumes concerning their respective capacities to deal with each other appropriately in matters concerning their daughter.

99 The father has also resisted the mother’s attempts to use a communication book.

Instead of responding to entirely appropriate entries in the book he sent her text

[2010] FCWA 3

messages on 12 October 2008 saying “I have just read your last 2 notes. you are a first class drugged Fucked social reject” and “Will you stop writing notes when your stoned. They don’t make any sense”. I might note that when the father was answering questions about this he showed no sign of remorse and on the contrary seemed to find it amusing.

100 At other times the father kept the communication book for extended periods,

making it impossible for the mother to exchange information about Tanya by this sensible means. On another occasion he refused to take the book from the mother, telling her instead (in the presence of Tanya) to put it in the letter box.

101 The mother’s agreement to an order for equal shared parental responsibility

seems to me to be an exercise of hope over experience. Nevertheless, as the mother is agreeable to such an order I will make it; however, it will be made on an interim basis only. I trust that the father will appreciate he has to change his attitude to matters involving his interaction with Tanya’s mother. I am satisfied he does have Tanya’s best interests at heart and can make a better effort to engage in appropriate shared parenting with the mother. If he cannot make these changes then the mother can apply for an order for sole parental responsibility.

Time sharing

102 As I propose to make an order for equal shared parental responsibility, I am

obliged by the legislation to consider whether an arrangement whereby Tanya spends equal time with each parent would be in her best interests and reasonably practicable. I would be obliged to consider this anyway, as it is the father’s proposal.

103 I have no doubt that an equal shared care arrangement is reasonably practicable,

given how close the parents live to each other and to Tanya’s school. I am not satisfied, however, that an equal shared care arrangement would be in Tanya’s best interests. I am satisfied that the quality of parenting that the mother is able to provide to Tanya significantly exceeds that which can be provided by the father. My reasons for so concluding would be apparent from the findings that I have set out above when dealing with the primary and additional considerations. In coming to my decision I have not overlooked the fact that Tanya’s half sister and half brother live with the father. Whilst it is likely to be in her best interests to develop strong relationships with them, I am satisfied this can be achieved without there being an equal shared care arrangement.

104 Having decided that an equal shared arrangement is not in Tanya’s best interests

I must then consider whether an arrangement whereby she spends substantial and significant time with each parent is in her best interests and reasonably practicable. It was acknowledged by counsel for the father that the mother’s proposals would constitute “substantial and significant time” within the meaning of the legislation. I am satisfied (at least on an interim basis) that it would be in Tanya’s best interest for her to spend substantial and significant time with each parent.

105 I have given very serious consideration to the suggestion made by counsel for

the mother in his closing submissions that rather than increase the father’s time with

[2010] FCWA 3

Tanya (as the father wants) or leave it largely as it is at present (which is the mother’s formal application) I should instead reduce the father’s time. I am entitled to take this course if I consider it is Tanya’s best interests, even if it is not sought formally by either party.

106 In considering this issue I have been troubled greatly by the mother’s evidence

that she only ever agreed to the father having the amount of time he now has because she felt that this was the likely outcome of the proceedings because of the “shared parenting” amendments made to the Act. I note also that her earlier agreement to the current arrangement came at a time when she had not seen the troubling documents produced under subpoena. I note further that in her affidavit of 5 December 2008 (which preceded the making of the March 2009 orders) the mother indicated her opposition to the father’s time increasing beyond four nights a fortnight because she was concerned Tanya was “stressed” by the amount of time she was spending with him, and in fact she said she wanted a reduction in the time.

107 It will be apparent from these reasons that I am less than impressed with many

aspects of the father’s conduct and presentation. I do consider there is a strong argument to change the arrangements back to the father having not more than four nights a fortnight with Tanya. Nevertheless, I accept that there is at least some prospect that the father might improve his level of commitment to working with the mother in Tanya’s best interests. I consider that he should be given one last opportunity to do so before further consideration is given to a reduction in his time with Tanya.

108 I therefore propose to make orders generally as sought by the mother in her

application but I intend to make them interim orders. This will mean that the mother would be able to bring the matter back before the Court to seek a reduction in the father’s time with Tanya if he does not begin to show real commitment to the concept of “shared parenting”. Shared parenting in my mind is a great deal more than dividing up a child’s life between the homes of two estranged parents. For it to work effectively there needs to be cooperation and at the very least civility and, hopefully, a degree of respect shown by both parents.

Other matters

109 I turn now to deal with the few remaining issues in dispute.

School holidays

110 The first issue concerns the way in which school holiday time should be

arranged, given that the parents agree that the time should be shared equally. As noted earlier, the father proposed the Christmas holidays should be divided into two blocks, whereas the mother originally wanted the time to be taken on a week-about basis (and now wants even shorter periods).

111 In my view the mother’s original proposal is to be preferred. Tanya has already

had a few seven day periods away from her mother and she has reached an age where she should be able to cope with this. I propose to authorise the mother to nominate the

[2010] FCWA 3

dates between which the father will take his Christmas school holiday time, provided she gives him ample notice of her intentions so he can make plans. My intention in making such an order is to allow the mother to make decisions in Tanya’s best interests about the way the schedule will be organised – for example, taking into account when the last periodic contact visit concluded and the rotation of the Christmas Day/Boxing Day arrangements. The father’s periods should be as close as possible to seven days at a time but I appreciate that some minor modifications may be necessary, provided the father ends up having half the time.

112 In coming to my decision I have accepted that Tanya’s age and the nature of her

relationship with her mother is such that it would not be in her best interests to have a block period of up to three weeks with each parent as the father proposes. In time to come this will probably become the preferred arrangement; however, I am satisfied that the mother herself will agree to such an arrangement when it is appropriate. There should be no need for the parties to come back to Court to litigate that issue.

113 Although no order has been sought about this, I expect both parents will allow

the other parent to make two telephone calls to Tanya during any period of a week she spends away from the other parent in school holidays. I understand this was an arrangement that they agreed informally previously.

Drug testing

114 I do not propose to make an order for continuation of drug testing. I accept the

mother’s assurance that she has not used drugs since late 2007 and I doubt that she will use drugs again in the future. If she did, I am satisfied that her drug use would not be at a level that would have any significant impact on the welfare of Tanya. In coming to my decision I have not overlooked the father’s complaints about the way in which the mother took her random drug tests previously. I note in this regard the mother’s willingness to undergo drug testing by hair sample.

115 Whilst I have some ongoing concerns about the possibility that the father might

again begin to use drugs or alcohol to excess, I am not satisfied that the evidence supports the continuation of a drug testing regime just for him as was proposed by the mother’s counsel in his closing address. (The mother indicated in her Papers for the Judge that she did not seek the continuation of drug testing for either party.)

Babysitting

116 I am not satisfied that it is appropriate for the mother to be required to use the

father as babysitter of first resort if she is unavailable for periods of more than two hours. The mother lives relatively close to her mother and stepfather and I am satisfied that she would make appropriate arrangements for the care of Tanya if she is unavailable to look after her. Given the father’s complete lack of cooperation with the mother in relation to matters concerning Tanya, I do not consider she should be put in a position where she would have to first approach him to look after Tanya. Although the father claims the maternal grandmother has a “long standing alcohol problem”, he gave no details of his claim and provided no corroboration of his allegation. Given his lack of credibility on other issues, and the apparent credibility of the grandmother and

[2010] FCWA 3

other witnesses who refute the father’s allegations, I place no weight on the father’s

claims.

Supervision of grandfather’s time with Tanya

117 For the reasons I have already indicated, I do not consider it in any way

appropriate to make the order proposed by the father seeking to have the maternal
grandfather’s time with Tanya supervised by anybody.

Attending school

118 I was not satisfied that there was any real need for the order set out in paragraph

14 of the mother’s minute but as there was no disagreement with the order which requires each party to ensure Tanya attends school except when she is sick, I will make that order. I suspect the origin of this proposal was the father’s refusal to ensure Tanya attended kindergarten on the days falling on his contact days.

Suspension of arrangements to permit travel

119 There was no real dispute concerning paragraph 16 of the mother’s minute

relating to either party being able to travel with Tanya for up to one week on two occasions each year. The only question was whether this could be done over Christmas or on Tanya’s birthday and there was agreement that this should not occur.

Communication between the parents

120 There was contention in relation to paragraph 18 of the mother’s minute which

proposed that the parents “at first instance attempt to inform each other by direct telephone contact rather than by SMS messaging in case any of the care arrangements made pursuant to these orders cannot be met by either party for any reason”.

121 In my view, if the mother and father are to successfully manage “shared

parenting” in future it is fundamental there be a capacity for them to actually speak with each other rather than to send text messages. It is difficult to convey more than very basic information in text messages and dialogue by text messaging is time consuming. Matters concerning the welfare of a young child should be capable of being discussed in a civil fashion by parents over the telephone. The mother and Ms C are already able to discuss matters in a sensible and mature fashion and it is now for the father to learn how to communicate sensibly with the mother by being able to discuss matters concerning Tanya with her.

Birthdays of Ingrid and Dan

122 In his closing address counsel for the father proposed an order for the father to

have time with Tanya on the birthdays of Ingrid and Dan. No such order had been sought previously and the mother’s views on it were not canvassed. I am not inclined to make an order that further complicates the contact regime. If the father would like

[2010] FCWA 3

Tanya to attend a birthday celebration for one of the other children he can seek the mother’s agreement. Her past behaviour would indicate she would consider that proposal respectfully and make whatever decision she felt was in Tanya’s best interests.

Orders

123 For these reasons I propose to make the orders set out below. To the extent that

the orders provide for minor variations to those agreed by the parties, these have been made deliberately on the basis that they provide greater clarity and/or are in Tanya’s best interests. Should either party be aggrieved by the variations, I will provide for them to have liberty to apply within the next 28 days to seek amendment. I should also note that paragraph 2 of the orders proposed by the mother has not been made as it is unnecessary, given that the legislation so provides in any event.

124 UNTIL FURTHER ORDER OF THE COURT:

1.	The mother, Ms E and the father, Mr S, shall have equal shared parental responsibility for their child Tanya E-S born in November 2003.
2.	Tanya shall live with the mother.
3.	Tanya shall spend time with the father as follows:-

(a)	each alternate week from 3:30 pm Wednesday until 3:30 pm Thursday; and
(b)	each intervening week from 3:30 pm Thursday until 8:30 am Monday.

4. The mother and the father shall spend time with Tanya during school term holidays as follows:-

(a)	for the first school term holidays with the mother for the first week from the conclusion of school on the last day of term until 5:00 pm of the same day the following week and with the father for the next seven day period;
(b)	for the second and third school term holidays with the father for the first week from 5:00 pm on the last day of term until 5:00 pm of the same day the following week and with the mother for the balance of the holidays.

5. Subject to paragraph 8 of these orders, the mother and the father shall spend equal time with Tanya during the summer school holidays with the mother to determine the times the father shall spend with the child, such times generally to be arranged so that the father’s time is taken in periods of seven days in succession. The

[2010] FCWA 3

mother shall give the father not less than three months notice of the
times she proposes.

6. The operation of paragraph 3 of these orders shall be suspended during all school holiday periods.

7. For the purposes of these orders the expression “school holidays” shall mean the period commencing at the end of the last day of the school term and concluding at the commencement of the first day of the new school term.

8. The mother and the father shall spend time with Tanya at Christmas as follows:-

(a)	in 2010 and each alternate year thereafter with the mother from 3:00 pm on Christmas Day until 5:00 pm Boxing Day;
(b)	in 2010 and each alternate year thereafter with the father from 5:00 pm Christmas Eve until 3:00 pm Christmas Day;
(c)	in 2011 and each alternate year thereafter with the mother from 5:00 pm Christmas Eve until 3:00 pm Christmas Day;
(d)	in 2011 and each alternate year thereafter with the father from 3:00 pm Christmas Day until 5:00 pm Boxing Day.

9. The mother and the father shall spend time with Tanya on her birthday as follows:-

(a)	if Tanya’s birthday falls on a non-school day, the mother shall spend time with her from 9:00 am until 1:00 pm and the father shall spend time with her from 1:00 pm until 5:00 pm; and
(b)	if Tanya’s birthday falls on a school day, the parent with whom she is not spending that night pursuant to these orders shall collect her from school and return her to the other parent’s home at 6:00 pm.

10. If Father’s Day falls on a day that the father is not spending time with Tanya the father shall spend time with her from 5:00 pm on the Saturday immediately prior to Father’s Day until 5:00 pm on Father’s Day.

11. If Mother’s Day falls on a day that the mother is not spending time with Tanya the mother shall spend time with the child from 5:00 pm the Saturday immediately prior to Mother’s Day until 5:00 pm on Mother’s Day.

[2010] FCWA 3

12. The mother and the father shall spend time with Tanya on their own birthday as follows:-

(a)	if the birthday falls on a school day, from the end of school until 7:00 pm; and
(b)	if the birthday falls on a non-school day, from 9:00 am until 1:00 pm.

13. Handovers shall take place as follows:-

(a)	on school days Tanya shall be dropped off at or collected from school; and
(b)	on non-school days the father shall collect Tanya from the mother’s residence at the commencement of the visit and the mother shall collect Tanya from the father’s residence at the conclusion of the visit.

14. The mother and the father be restrained and an injunction is hereby granted restraining each of them from denigrating or speaking adversely about the other party in the presence of or within hearing of Tanya.

15. The mother and the father shall ensure that Tanya attends school save and except for when she is sick.

16. The mother and the father shall keep the other informed of all significant health issues pertaining to Tanya and for this purpose:-

(a)	both parents provide all necessary authorisations to enable the other party to obtain information from any hospital or medical/health practitioner that may assist or treat the child;
(b)	both parents notify the other parent of any arranged appointments relating to any major or serious health problem of the child; and
(c)	each parent be at liberty to attend such appointment.

17. On two occasions each year both parents have liberty to give notice that they wish to travel with Tanya, such notice to be given in writing at least one month in advance and to include details of the planned itinerary. The time sharing arrangements with the child shall be suspended for a period of up to one week for the purpose of any travel, provided that the times provided for in paragraphs 8, 9, 10, 11 and 12 shall not be suspended without the written consent of the other parent.

[2010] FCWA 3

18. The mother and the father shall provide a contact number and address to each other during periods when Tanya spends time with the other party in holiday periods.

19. The mother and the father in the first instance shall attempt to inform each other by direct telephone contact rather than SMS messaging in case any of the care arrangements made pursuant to these orders cannot be met by either parent for any reason.

20. The application and response be otherwise adjourned generally with the mother to have liberty to apply to vary the orders made in relation to parental responsibility and the periodic time sharing arrangements. The liberty to apply may be exercised by filing and serving a Form 2 application with supporting affidavit, such application to be listed if practicable before Thackray CJ.

21. The mother and the father have liberty to apply in the next 28 days in relation to the form of these orders.

I certify that the preceding [124] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate