ELBERS & ELBERS
[2019] FCCA 3748
•20 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELBERS & ELBERS | [2019] FCCA 3748 |
| Catchwords: FAMILY LAW – Parenting – discrete issue regarding regime of graduated increase in child’s time with the Father – historical allegations of violence – history of poor communication between parents – no relevant risk in either household – orders made for gradual increase in child’s time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) & (b), (c) – (d), (f) and (i); 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 |
| Applicant: | MR ELBERS |
| Respondent: | MS ELBERS |
| File Number: | CAC 2139 of 2016 |
| Judgment of: | Judge Neville |
| Hearing dates: | 11 & 12 June 2019 |
| Date of Last Submission: | 7 August 2019 |
| Delivered at: | Canberra |
| Delivered on: | 20 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Maurice |
| Solicitors for the Applicant: | Strong Law Pty Ltd |
| Counsel for the Respondent: | Mr G Howard |
| Solicitors for the Respondent: | Farrar Gesini Dunn |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid ACT |
ORDERS
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
The parents have equal shared parental responsibility for the child, X (born: 2012) (“the child”).
ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:
From the date of these Orders until the child’s 8th birthday (on 2020), unless otherwise agreed between the parties, the child is to:
(a)Live with the Respondent Mother; and
(b)Spend time with the Applicant Father each Wednesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.
From the child’s 8th birthday until the child’s 9th birthday (on 2021), unless otherwise agreed between the parties, the child is to:
(a)Live with the Respondent Mother; and
(b)Spend time with the Applicant Father each Tuesday from the conclusion of school or 3:00pm until the start of school or 9:00am the following Monday.
From the child’s 9th birthday (on 2021) onwards, the child is to live in a shared-care arrangement, with changeovers to occur as agreed between the parties and in the absence of agreement, after school or 3:00pm each Monday.
Neither party, their agents nor their servants shall discuss these proceedings with the child, in front of the child or within the child’s hearing.
Neither party, their agents nor their servants shall denigrate the other party, the other party’s partner or family to the child, in front of the child or within the child’s hearing.
All extant applications be dismissed, the matter finalised and removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Elbers & Elbers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 2139 of 2016
| MR ELBERS |
Applicant
And
| MS ELBERS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting Orders that are in 7 year old X’s best interests.
At the end of the hearing, the parties agreed upon Orders being made for X to live in an arrangement of 9 nights per fortnight with his Mother and 5 nights per fortnight with his Father to commence in 2020. They also consented to an Order for equal shared parental responsibility.
The parties further agreed in principle that X’s time with the Father should move to 6 nights per fortnight. Alas, they did not agree on how or when this transition is to occur.
Ultimately, the only issue of any moment to determine is the rate of progression (if any) from the current “time-with” regime of X with his Father to a shared care/equal time arrangement. Given the narrowness of the issue in dispute, and the volume and quality of expert evidence, plus the experience of all the lawyers involved, the matter should never have run – but it did – in my view almost needlessly.
Moreover, given the somewhat limited capacities, or perhaps more accurately, the limited insight of both parents (in different ways), the expert evidence assumed a somewhat greater importance than it might otherwise have done. Be that as it may, the Report of Ms A dated 9th March 2018 (Exhibit A), because of its greater precision and depth of analysis (which is not meant to be a criticism of the later Report) assumed somewhat greater importance than the other, later Report of Ms B, dated 8th June 2019 (Exhibit C).
Without being overly critical, the parties’ evidence was extremely limited both in scope and ultimately in value. The primary evidentiary issues related, at least initially, to the Mother’s concerns about the possibility (and proposed potential risk) of X at any stage, particularly being looked after by Ms D, who is the adult daughter of the Father’s partner, Ms E. Ms D has her own child. Perhaps curiously, compared to X’s parents, both Ms E and her daughter, Ms D, presented as very straight-forward, good, clear witnesses. I accept their evidence, including that Ms D does not (and does not expect to) look after X.
The Independent Children’s Lawyer (“the ICL”) proposed Orders for X to transition to a shared care arrangement (seemingly somewhat earlier than proposed by Ms B), subject only to the Court finding no relevant unacceptable risk. Formally, in the light of the Reports and evidence more generally, I find there to be no relevant risk for X in the care of either of his parents.
In the latest Family Report (Exhibit C), Ms B recommended that the current arrangements continue and that there be a further review of parenting arrangements when X turns 10. Obviously, that recommendation occurred prior to the parties agreeing to the 5/9 arrangement that is currently in place. In her oral evidence, Ms B confirmed that there was no particular “magic” about a review occurring when X turned 10. Indeed, all the independent evidence confirmed that X has a good and close relationship with both parents.
There was a small mountain of evidence, including a tender bundle provided by the Father (Exhibit F2), records from ACT Care and Protection (Exhibit F3), and from the Australian Federal Police (Exhibit M2). There was also the almost usual range of allegations of parenting delinquency levelled against both parents to varying degrees, and other related matters (e.g. misuse of alcohol, which the Father seemed to acknowledge - to a point). Notwithstanding all this, as already noted, the parents agreed on a “5/9” co-parenting arrangement at the end of the trial.
In my view, such an agreement between the parties, for all their areas of dispute (real and somewhat confected) almost makes a detailed examination of the oral evidence somewhat superfluous precisely because all it does is traverse allegations and matters that were not sufficient to prevent the parties from reaching an almost shared care agreement. And it is for the same general reason(s) that, as already stated, the expert evidence assumed much greater prominence compared to the evidence of the parties.
I recall that in AMS v AIF, Kirby J observed that there is, in parenting cases that involve relocation, a “large element of judgment, discretion and intuition.”[1] The current matter obviously does not involve “relocation.” However, in my view, the same basal comments of his Honour apply to all parenting matters.
[1] AMS v AIF (1999) 199 CLR 160 at p.211 [150].
In the same case, Hayne J said (internal citations omitted; emphasis added):[2]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
[205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[2] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by both Kirby and Hayne JJ are in a legislative context different to that which operates today. Accepting that qualification, respectfully, their Honour’s comments, in my view, are and will remain important.
In the light of (i) the evidence, especially from the experts, (ii) the principles and comments from the High Court, and others noted below, and (iii) the agreement already reached by the parties, (a) X’s time with the Father shall move to 6 nights per fortnight on X’s 8th birthday, and (b) X’s time shall move to an equal time arrangement with both parents on his 9th birthday. In my view, such a measured, almost desultory transition will allow for any minor hiccups to be ironed out between the parents over a good length of time. Most importantly it will allow an almost leisurely transition for X to acclimatise, as he gets older, to a slightly greater amount of time with his Father (as he wanted) and a very small diminution of the time with his Mother, which X was sensitive to as well.
Orders sought on behalf of the Applicant
The Applicant’s orders sought were outlined in his Case Outline filed on 3rd June 2019, which provided as follows:
Minute of Final Orders Sought by Father
1) That all previous orders in this matter be discharged and outstanding applications be dismissed.
2) That the parents have equal shared parental responsibility for the child, X ("X"), born 2012.
a)Living and care arrangements
3) That X shall live with his Mother.
4) That X shall spend time with his Father as follows:
b)During ACT school terms
i.From the date of these orders, each alternate week, from the conclusion of school Friday until the commencement of school Tuesday.
ii.From the commencement of term three 2019, each alternate week, from the conclusion of school Friday until the commencement of school Wednesday.
iii.From the commencement of term one 2020, each alternate week, from the conclusion of school Friday until the commencement of school Thursday.
iv.From the commencement of term three 2020, X shall live with each parent on a week about basis from the conclusion of school Friday until the conclusion of school on the following Friday.
c)During ACT school holiday periods falling at the end of Terms 1, 2 and 3
i.X shall live with each parent on a week about basis from the conclusion of school on the last day of term to 3:00pm on the middle Saturday of the holiday period (changeover to occur at F Playground, or as otherwise agreed in writing).
During ACT school holiday periods falling at the end of Term 4
i.That unless otherwise agreed in writing between the parties, X shall live with each parent on a week about basis from the conclusion of school on the last day of term until 3:00pm on the following Friday (changeover to occur at F Playground, or as otherwise agreed in writing).
Telephone communication
5) The Mother is at liberty to contact X by telephone at any reasonable time whilst X is in his Father's care and the Father will facilitate X's communication with his Mother.
6) The Father is at liberty to contact X by telephone at any reasonable time whilst X is in his Mother's care and the Mother will facilitate X's communication with his Father.
Mother's Day and Father's Day
7) Notwithstanding these Orders, X shall spend time with his Mother for the Mother's Day weekend, from the conclusion of school on the Friday prior to Mother's Day (collecting from school) until the commencement of school on the Monday following Mother's Day (delivering to school).
8) Notwithstanding these Orders, X shall spend time with his Father for the Father's Day weekend, from the conclusion of school on the Friday prior to Father's Day (collecting from school) until the commencement of school on the Monday following Father's Day (delivering to school).
X's Birthday
9) That on X's birthday each year the parent with whom X is living with shall make him available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5:00pm until 7:00pm.
Mother's Birthday and Father's Birthday
10) That notwithstanding these Orders, if the Mother's birthday or the Father's birthday falls on a day when the child would otherwise be living with the other parent, the following Orders apply:
a)That if the Mother's or Father's birthday falls on a weekday, X shall spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 3:00pm (or the conclusion of school if a school day) to 7:00pm.
b)That if the Mother's birthday or Father's birthday falls on a weekend, X shall spend time with the parent having the birthday from 9:00am to 5:00pm on the birthday.
Easter
11) That notwithstanding these Orders, for Easter in 2020 and each alternate year thereafter, X shall spend time with his Father from after school on the Thursday immediately prior to Good Friday (or 9:00am if X does not attend school that day), until the commencement of school the following Tuesday (or 5:00pm if X does not attend school that day).
12) That notwithstanding these Orders, for Easter in 2021 and each alternate year thereafter, X shall spend time with his Mother from after school on the Thursday immediately prior to Good Friday (or 9:00am if X does not attend school that day), until the commencement of school the following Tuesday (or 5:00pm if X does not attend school that day).
13) For the purpose of Order 11 and 12 herein and in the event Easter falls in the school holiday period, the parent who is not spending time with X for Easter shall spend time with X for the other week of the school holiday period. It is noted that the purpose of this order is to ensure that X does not miss out on spending a full week with each parent during the school holiday period.
Christmas
14) That notwithstanding these Orders, for Christmas in 2019 and each alternate year thereafter, X shall spend time with his Mother from 12:00pm Christmas Eve until 12:00pm Boxing Day.
15) That notwithstanding these Orders, for Christmas in 2020 and each alternate year thereafter, X shall spend time with his Father from 12:00pm Christmas Eve until 12:00pm Boxing Day.
Changeovers
16) For the purpose of handover, the Father shall collect and deliver X to and from school on a school day. All other handovers shall occur at F Playground at the BBQ area, unless otherwise agreed in writing between the parties.
Communication
17) That the parents shall consult with each other about decisions to be made in the exercise of their shared parental responsibility and otherwise communicate about the care and welfare of X in the following manner:
17.1 - via "Our Family Wizard" or another agreed communication tool; or
17.2 - In writing by email or text message; or
17.3 - By telephone.
18) That each parent shall keep the other informed of their residential address and telephone numbers to contact X on and shall notify the other parent of any change to these details within 24 hours of such change.
Medical
19) That each parent shall notify the other forthwith of any serious illness or injury affecting X and shall be at liberty to contact any doctor or hospital treating X to obtain information.
20) That each parent shall notify the other of the name and contact details of any general practitioner, medical practitioner, paediatrician and/or any other specialist who treats X whilst X is in that parent's care.
Other
21) Neither parent is to consume illicit substances whilst X is in their care and both parents are to ensure that no other person consumes illicit substances in the presence of X when he is in their respective care.
22) Neither parent to denigrate the other parent, or the other parent's family in the presence or hearing of X and not allow any other person to denigrate the other parent or a member of the other parent's family in the presence or hearing of X.
23) The parties be restrained by injunction from discussing these proceedings with or in the presence of X or showing X any document connected with these proceedings.
Orders sought on behalf of the Respondent
The Orders sought by the Respondent were outlined in the Case Outline filed on 4th June 2019, which provided as follows:
Final Orders Sought
1) All previous Orders in this matter be discharged and outstanding applications be dismissed.
2) The child X born 2012 (“X”) live with his Mother.
3) That the parents have equal shared parental responsibility for the child.
4) That the child spend time and communicate with the Father as follows:
During ACT school terms:
a) In the event the Father remains living within 50 kilometres of the Canberra City Post Office:
i.each alternate weekend (commencing Thursday 4 April 2019, and thereafter on the first Thursday of each term) from the conclusion of school on Thursday, collecting from school (or 3pm Thursday if the child is not at school that day) to before school Monday, delivering to school (or 12 noon Monday if the child is not at school that day);
b) In the event the Father moves his residence more than 50 kilometres from the Canberra City Post Office, but within 200 kilometres:
i.During ACT school terms: each alternate weekend (commencing on the first Friday of each term) from the conclusion of school on Friday, collecting from school (or 3pm Friday if the child is not at school that day) to 3pm on Sunday (delivering to F Playground, or as otherwise agreed in writing);
c) In the event the Father moves his residence more than 200 kilometres from the Canberra City Post Office:
ii.During ACT school terms: for 2 weekends each school term, as agreed between the parties, but failing agreement from the conclusion of school on Friday, collecting from school (or 3pm Friday if the child does not attend school) to 3pm on Sunday (delivering to F Playground, or as otherwise agreed in writing), such weekends to commence on the Friday that falls at the end of weeks 3 and 7 of each school term;
d) During ACT school holidays (excluding the December/January holidays) as follows: each alternate week of the holidays from 3pm on the Friday of the last week of term to 3pm the following Friday (delivering to F Playground, or as otherwise agreed in writing);
e) During the ACT school holidays in December 2019/January 2020 as follows:
i.from 3pm on the Friday that falls approximately 1 week after the Friday in the last week of Term 4 until 3pm on the Friday that falls 1 week later, and each alternate week thereafter (and the Father will return X to school at the Start of Term 1 following on from his last week of the holidays);
f) During the ACT school holidays in December 2020/January 2021 as follows:
i.from 3pm on the Friday that falls in the last week of Term 4 until 3pm on the Friday that falls 1 week later, and each alternate week thereafter (and the Mother will return X to school at the Start of Term 1 following on from her last week of the holidays);
g) During the ACT school holidays in December 2021/January 2022, and each alternate year thereafter as follows:
i.from 3pm on the Friday that falls approximately 1 week after the Friday in the last week of Term 4 until 3pm on the Friday that falls 1 week later; and
ii.from 3pm on the Friday that falls 4 weeks after the Friday in the last week of Term 4 until before school Term 1.
h) During the ACT school holidays in December 2022/January 2023, and each alternate year thereafter as follows:
i.from 3pm on the Friday that falls in the last week of Term 4 until 3pm on the Friday that falls 1 week later; and
ii.from 3pm on the Friday that falls 2 weeks after the Friday in the last week of Term 4 until 3pm on the Friday that falls 4 weeks after the Friday in the last week of Term 4.
i) for the Father’s Day weekend, from 3pm the Friday prior to Father’s day (collecting from school) until on 9am Monday following Father’s day (delivering to school);
j) At such other times as agreed between the parties;
k) At all other times with the Mother.
5) The Mother is at liberty to contact X by telephone at any reasonable time whilst X is in his Father’s care and the Father will facilitate X’s communication with his Mother.
6) The Father is at liberty to contact X by telephone at any reasonable time whilst X is in his Mother’s care and the Mother will facilitate X’s communication with his Father.
7) Notwithstanding these Orders, X spend time with his Mother for the Mother’s Day weekend, from 3pm the Friday prior to Mother’s day (collecting from school) until on 9am Monday following Mother’s day (delivering to school).
8) That notwithstanding these Orders, if the mother’s birthday or the father’s birthday falls on a day when the child would otherwise be living with the other parent, the following Orders apply:
a)If the parents are in the same town on that day:
i.That if the mother’s or father’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the child spend time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from 4pm until 7pm;
ii.That if the mother’s birthday or father’s birthday falls on a weekend each of the parties take all reasonable steps to ensure that the child spend time with the parent having the birthday from 9am until 5pm on the birthday.
b)If the parents are not in the same town on that day:
i.the parent who is caring for the child will facilitate the child communicating with the other parent by Facetime at 6pm, or as otherwise agreed.
9) That on the child’s birthday each year the parent with whom the child is living make him available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5pm until 7pm and in the event that the parties are not in the same town on that day, the parent who is caring for the child will facilitate the child communicating with the other parent by Facetime at 6pm, or as otherwise agreed.
10) That notwithstanding these Orders, for Christmas in 2019 and each alternate year thereafter, the child spend time with the Mother from 5pm Christmas Eve until 10am Boxing Day.
11) That notwithstanding these Orders, for Christmas in 2020 and each alternate year thereafter, the child spend time with the Father 5pm Christmas Eve until 10am Boxing Day.
12) That notwithstanding these Orders, for Easter in 2020 and each alternate year thereafter, the child spend time with the Father from after school on the Thursday immediately prior to Good Friday (or 3pm if the child does not attend school that day), until before school the following Tuesday (or 3pm if the child does not attend school that day).
13) That notwithstanding these Orders, for Easter in 2021 and each alternate year thereafter, the child spend time with the Mother from after school on the Thursday immediately prior to Good Friday (or 3pm if the child does not attend school that day), until before school the following Tuesday (or 3pm if the child does not attend school that day).
14) For the purpose of handover, the father shall collect and deliver the child to and from school and when the child is not at school that day the parties shall meet for handover at F Playground at the BBQ area, or as otherwise agreed in writing.
15) That unless otherwise agreed, the Mother and Father do all things necessary to continue to use the Our Family Wizard website (or such other parenting communication tool as agreed between the parents) and continue to renew their subscriptions and use the communication tool to facilitate discussions between the parties about X, enable requests for swapping days and other negotiations between the parties.
16) That the parties consult with each other about decisions to be made in the exercise of their shared parental responsibility, and communicate otherwise in the following manner:
a)via "Our Family Wizard" or another agreed communication tool; or
b)In writing or email or text message; or
c)By telephone as agreed.
17) That the parties are restrained from physically disciplining X.
18) That each parent keep the other informed of their residential address and telephone numbers to contact X on and shall notify the other parent of any change to these details within 48 hours of such change.
19) Each parent will ensure X has his own bedroom at their residential address.
20) If the parents are unable to personally attend handover (either at school or otherwise) they will inform the other parent in advance and will arrange for an agreed person to attend handover in their place. The parents will inform X who will be attending handover.
21) That each parent notify the other forthwith of any serious illness or injury affecting X, and be at liberty to contact any doctor or hospital treating X to obtain information.
22) That each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats X whilst X is in that parent's care.
23) Neither party is to consume alcohol above the legal driving limit when X is in their respective care and both parents to ensure that X is not in the presence of any other person consuming alcohol to excess when X is in their respective care.
24) Neither party is to consume illicit substances and both parents to ensure that no other person consumes, or is under the influence of illicit substances in the presence of X when he is their respective care.
25) Neither parent to denigrate the other parent, or the other parent’s family in the presence or hearing of X and not allow any other person to denigrate the other parent or a member of the other parent’s family in the presence or hearing of X
26) The parties be restrained by injunction from discussing these proceedings with or in the presence of the child or showing to the child any document connected with these proceedings.
27) The Father is hereby restrained from permitting X to be left alone or in the care of Ms D.
28) The Father immediately remove the child from the presence of Ms D in the event he perceives anything untoward with respect to Ms D’s behaviour or condition, and notify the Mother of this.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer had an ‘Orders sought’ section in her Case Outline, filed 4th June 2019, which simply provided as follows:
Orders Sought
Father
The Father seeks Orders as per his Outline of Case.
The Orders essential provide for X to live with his Mother and spend increasing time with his Father until the commencement of Term 3 2020 when the Father proposes that X live with each parent in a shared care week about arrangement. The Father also proposes school holiday time and special days for X to spend time with each parent.
Mother
The Mother seeks Orders as per her Amended Response to Initiating Application.
The Orders essential provide for X to live with her, for the parents to have equal shared parental responsibility for X and for X to spend time with his Father for four nights each alternate weekend and time during the school holidays and special days. The Mother also seeks Orders that prohibit the Father leaving X in the care of Ms D and that the Father shall remove X from the presence of Ms D if the Father perceives anything untoward in respect of Ms D’s behaviour.
ICL
Subject to the court finding that there is no unacceptable risk to X in the care of his Father the ICL supports X living and spending time with his parents in a shared care arrangement.
Summary Statement of Facts
The following outline of facts was set out in the Independent Children’s Lawyer’s (“the ICL”) Case Outline. I accept it as an accurate overview of the relevant factual background to the current dispute before the Court. It was as follows:
· X is the only child of the relationship of the Mother and Father.
· Both the Mother and Father have re-partnered. The Father and his Partner, Ms E live together. The Mother and her partner currently do not.
· The Father and Ms E have a child together born in 2018.
· The Father, Ms E, Ms D the adult child of Ms E and her young son all live in the same household.
· The Mother and Father separated in 2015. On separation X was 3y old. He remained living with his Mother and spend [sic] time with his Father.
· The parties reached consent Orders for Property in June 2017. Shortly after the Mother advised the Father that she had concerns about X’s care while he was with the Father.
· The Father commenced proceedings in July 2017 as the Mother had ceased X spending time with his Father.
· The Mother has concerns in regards to Ms E’s adult children, Mr O and Ms D, especially Ms D, as she resides in the home with the Father.
· The Mother has raised concerns in regards to the Father’s alcohol consumption. The Father provides evidence in regards to this.
· The Mother has raised concerns in regards to illicit substance use by the Father and Ms D. The father has undergone drug urine analysis testing and hair follicle testing. Ms D declined a request by the ICL to undergo drug testing.
· The Mother has raised the issue that the Father may relocate to the Region G in the future. The Father states that he does not intend to relocate.
· Currently X spends four nights per fortnight and school holiday time with his Father.
Overview of the Father’s Oral Evidence
The Father’s oral evidence, summarised, was as follows.
The Father said that the communication between the parties was generally “good”. When it was put to him that the Family Consultant Memorandum of Ms H dated 7th September 2017 recorded that the parties “appear to have a poor co-parenting relationship”, the Father said that communication has since improved. He said that he believed that the parties are able to work together on important issues, but agreed that communication remained “difficult”.
The Father accepted that the Mother had made suggestions on ways that their communication and co-parenting relationship could improve. When asked what the elements of good communication are to him, he said that good communication involves “being respectful”.
The Father said that, for him, “texting” was much easier than emailing. The Father explained that he regularly checks his mobile phone but not his computer. He accepted that the Mother had, on various occasions, sent him emails and he had not responded. He said that if he did not believe an email needed to be responded to immediately, he may respond later or not at all. The Father said that he expected communication to improve “naturally” once litigation was over.
The Father said that the parties had very recently started using the “My Family Wizard” application as suggested at the Family Dispute Resolution Conference and he believed that this would improve communication between the parties.
The Father accepted that his approach to parenting was very different to that of the Mother’s, and that what each of them considers to be important may also be different.
The Father said he had agreed to enrol in the ARCK Parenting Program, however there was no availability in that program until September 2020. He had not tried to enrol in an alternative program.
The Father said that he did not intend to move from Canberra in the near future. He said he owns a property on the Region G, and that he may move there for his retirement.
The Father said that he trusts the Mother to an extent and trusts that she makes great decisions for X. He said that his trust with the Mother had significantly improved since the appointment of the ICL and her assistance at the recent Family Dispute Resolution Conference.
X has some incontinence problems. The Father agreed that the Mother had arranged all medical and physiotherapist appointments related to treatment and management. He said that he knew that the physiotherapist had recommended a particular toileting routine and the Mother communicated these recommendations to the Father. The Father said that he was aware that the Mother followed this routine in her house but that he does not agree with it and does not necessarily follow this routine in his home. The Father said he generally avoided discussions with the Mother about bed wetting because he did not want to start a fight.
The Father was questioned about his alcohol consumption and the results of his carbohydrate-deficient transferrin (“CDT”) test, for which he had received a result that may indicate regular and excessive alcohol consumption. The Father said that for him, 5 or 6 beers a day would be a level of alcohol consumption that he would consider to be “excessive”. He accepted that he drank too much during the parties’ relationship. It was suggested that the Father gain support and understanding about alcohol use and abuse.
The Father was questioned about past incidents of aggression and/or violence. The Father said there had been incidents, but not violent incidents. He said he had punched a wall because he was angry with the Mother, and that this was stupid because he had to fix the hole. He accepted that the Mother was likely frightened by this.
The Father was asked about an incident in 2006 when the Mother went to the J Club with another man without telling him. The Father agreed that he had been angry and jealous and had called her and made a threat. He said that contrary to the police records, he did not have a knife.
It was put to the Father that there were other incidents where he had come home drunk, including one occasion in 2015 when he had blood on his right hand, and another occasion in 2016 when the Mother had attempted to call the police for assistance and the Father had taken her phone away from her.
The Father said that on one occasion, the Mother had punched him, but that he had deserved it. He said that this did not reflect his opinion that violence was acceptable; it was not.
The Father said that he was aware of Ms D’s past drug use and the Order permitting the ICL to make a request that Ms D undergo urinalysis testing. He said that he did not ask Ms D to undergo such testing because she was an adult and it was her choice; in his mind it was not relevant because Ms D would not be involved in the care of X in any event.
The Father agreed with the suggestion from the ICL, that he was a “man of few words”. He said that for him, it would be better if communication was “regular but short”. If he received a three page email in an evening he would not read it. He said he was willing to continue to use the Parenting App.
The Father agreed that X was a generally happy child and that he was happy in both homes.
The Father confirmed that he would try to take suggestions or proposals from the Mother in the spirit in which they were intended. He said “everything is worth a go”. In relation to X’s bed wetting issue, he said that he would be prepared to see a medical specialist and follow their recommendations.
The Father agreed that the Mother is a good parent to X. He said X loves his Mum, and enjoys spending time and doing activities with her.
The Father agreed that in his early 20s, he “was a bit stupid and drank too much”, but he said that he is 36 now and this behaviour is in the past. He said that for him, most conflict between the parents arose from accusations against him and his family.
Overview of Ms E's Oral Evidence
Ms E gave very brief oral evidence. She said that she was aware of a newspaper article from the Canberra Times newspaper that had provided some indication that she was associated with bikie gangs. Ms E confirmed that she had no associations with any gangs, but that she had not provided this information and explanation to the Mother.
Ms E confirmed that she was aware that her daughter, Ms D, had tested positive to illicit drugs in July 2017. She further confirmed that Ms D would not be directly involved in X’s care.
Overview of the Mother’s Oral Evidence
The Mother’s oral evidence, summarised, was as follows.
The Mother accepted that there were no risks to the child in the Father’s care, or in the care of the Father’s partner, or from Ms D. She confirmed that there was no material from the police or ACT Child and Youth Protection Service that would be indicative of any risk. She said that her main concern was that there would be a change to X’s routine and that she would feel as if she were “missing out” when X was not in her care.
The Mother said that she believed that it was important for the parties to try to get along, for X’s sake, and that this was what she intended to do after the proceedings were over. She said that she believed the Orders could be made “future proof” by taking steps to communicate better such as at a monthly meeting.
The Mother said the parties did not speak about substantive issues at changeovers.
The Mother said that she believes that X is safe and properly cared for while he is in the care of the Father. She had no serious issues about the Father’s parental capacity. She said that the disagreement was not about whether or not the Father cared for X, but rather the frequency and duration of such care. She accepted that during the school holidays, X is in the care of the Father for longer periods of time and that she did not hold any concerns with this arrangement.
In relation to some of the claims of risk to the child, Mother said that she accepted that the Father’s partner, Ms E, was not associated with bikie gangs and did not consume illicit drugs. The Mother also accepted that the Father does not have a problem (or any addiction) with alcohol and drugs.
The Mother informed the Court that the Father is not currently paying any child support. She said that she was willing to accept the Father’s evidence that he had made an application for assessment from the Child Support Agency and that he has not yet received that assessment.
Ms Elbers said that she would feel a loss within herself if X was not with her, because currently they do everything together. She said that she is seeing a counsellor and they discuss various issues, including coping with those feelings of loss.
The Mother was handed copies of text messages between the Mother and the Father. She agreed that the text messages were generally light-hearted and polite, and that there was quite a lot of information that was passed between the parties. She said that the messages were from 3 years prior and that currently she would categorise the parties’ communication as “bad”. The Mother said that she believes that communication needs to improve and that professional assistance, such as through a facilitated meeting, would be one way to do so.
The Mother was questioned about the child’s disclosure to her in June 2017 and of the possibility that X had observed the Father injecting a needle “in” or “behind” his knee and his toe. The Mother said that, after this disclosure, she was unsure what to do so she spoke to her Mother, the paternal Grandfather, ACT Child and Youth Protection Service and the police. She said that as a result of this disclosure she withheld the child from the Father in a protective manner. She said she did not speak directly to the Father about it because their communication was not good at this time.
The Mother said that the police and ACT Child and Youth Protection Service had not taken any action in relation to this report. She said that X has not said anything of concern before or since, and the Mother now accepted that nothing had happened. She accepted that X’s description to her may have been a nightmare.
In response to questions from the ICL, the Mother said that she would now react differently if X were to tell her concerning information, such as the information in June 2017. The Mother said that if this were to happen again, she would discuss the matter directly with the Father.
The Mother said that she had withheld the child until the Father had provided the results of a hair follicle test. She said she had been concerned about “substance abuse” and that to her, that term encompassed both drug and alcohol abuse. She said that she had believed that hair follicle testing would provide results relating to use of both drugs and alcohol, and that she did not understand the results of the testing.
It was put to the Mother that she has sought to raise every possible complaint against the Father; she denied this proposition. The Mother conceded that she had provided the most serious information in her material, and that not all the details were relevant to the matter before the Court.
The Mother said that for her, communication has been the main problem. She said that recently, communication has improved somewhat, but she would like to see it continue to improve. She said that they only speak directly a couple of times each year and that the last time they spoke to each other was in December 2018 or January 2019. The Mother said that she believed there was potential for further improvement in communication.
The Mother agreed that the difference in each parent’s proposed “time with” arrangements would make very little difference to X. X has been consistent in expressing his wish to spend more time with both parents. She said that while X does not cope well with change, she agreed there was no “magic” age when X would best transition to a regime of increased time with the Father. She said that X was currently coping well with spending longer periods of time with the Father during the school holidays. According to the Mother, a slow increase in time would work best.
The Mother said that she accepted that the parents have very different parenting styles and that these styles were not necessarily incompatible. The Mother acknowledged that X enjoys spending time with both his parents and that they have different contributions to his upbringing. The Mother accepted that the Father was not talkative, whereas she was quite talkative.
Overview of Ms D's Oral Evidence
Ms D, who is the Father’s partner’s daughter, gave very brief oral evidence, summarised below.
Ms D has a young child in her sole care who was born in 2018. She is currently a full-time parent but intends to return to work as a tradesperson once her child starts pre-school. Ms D and her son currently live in the same household as Ms E (her Mother), X and the Father. She says that she has complete faith in the capacity of X's Father and his partner, her Mother, to care for X.
She acknowledged that she had taken illicit drugs in the past, but that she has not done so for some time. She confirmed that she had declined to undergo urinalysis testing, and said that it was because she was an adult and was not bound to do so. She is not currently involved in the care of X, nor does she plan to be, and therefore believed the test to be irrelevant.
In response to questions from the ICL, Ms D clarified that she did not undergo drug testing because X is never in her sole care and, as such, she did not want to involve herself in the matter before the Court. She confirmed that she intends to find her own house when she is able to. Ms D acknowledged that in the past she had led a “colourful life” and had caused her Mother some strife. However, she explained that she had grown a lot since the birth of her child. She said that she now feels that her life has greater purpose.
The Family Report of Ms A
As earlier recorded, Ms A’ detailed Report became Exhibit A. From my perspective, it was a highly informative Report in all respects. I begin here with setting out those parts of the Report which record X’s relationship (as observed by the Family Consultant) with both parents, from pars.50 – 61:
The Child and his Relationships
[50] X was seen on two occasions for the purpose of this assessment, he attended separate interviews, when each of his parents accompanied him. He presented as an engaging, robust and confident little boy. He appeared highly articulate for his age. On the first occasion that X was seen he was observed informally with his mother. There appeared to be an easy rapport between them and Ms Elbers was attentive to X and warm towards him.
[51] X appeared comfortable in his conversation with the Psychologist, from the commencement of the first interview, when after a relatively short introduction to the Psychologist he was happy for his mother to go to the coffee shop downstairs while he and the Psychologist “talked and played”.
[52] X readily provided information about his school. He said that he was in “Kindy” at K Primary School. He said he had a “best friend” at school called P and that he liked his class teacher, whom he also named. He stated that he enjoyed, “learning stuff that is new”. He provided an example of this, “I learn to play fine motor. Everyone has positions and they go to the table and they do what they are told”.
[53] Initially, X was asked by the Psychologist if he enjoyed drawing and he responded in the positive. He was asked to draw a picture of his family “doing something”. He seemed bemused that the Psychologist had provided him with more than one piece of paper for his drawing and he asked about her reason for this. X did not commence the drawing and instead chatted to the Psychologist as he slowly explored the toys in her room.
[54] X spontaneously said, “When I am at Dad’s a pigeon visits me every day”. He was asked what times he spent at his father’s place and he responded that he was there on “Mondays and Thursdays’. X was asked who else lived at his father’s place and he said, “Ms Q, she is one of Daddy’s friends. She’s a nice girl because she spoils me. My Nanny spoils me even more”. X detailed toys and presents he had received from his paternal grandmother and Ms E.
[55] X said that he visited his Nanny and “sometimes I do it overnight”. He said that his grandmother lived “All the way to Town R”. He imparted an observation while he was at his grandmother’s house, “One day a dragonfly woke up early in the morning and it bumped it’s head on the window”. X laughed as he remembered this event.
[56] X confidently told the Psychologist that he was aged 5 years and that it was “very good” being his age because you “could see lots of things”. X was asked who comprised his family and he said, “My Mum, my Dad and me. I have S and T, they are my friends. (his father’s work partner’s children) I have Nanny and Poppy in my family. Me in my family and U is in my family. He is one of my digging mates”.
[57] X was asked what his favourite “thing to do” was. He looked unsure and the question was re-phrased by asking him what his favourite activity was at his father’s house. X responded, “Going to my Nanny’s is so much fun. We go passed Town V and Town W and then all the way over the mountain. My Nanny lives on a farm. She has dogs and horses. She has two horses named, Y and Z and she has AA and BB. I go to the beach and I swim (he physically demonstrated his swimming action). I see lots of stuff. I go to swimming lessons here but not at the Region G”. X was asked what negatives there were about visiting his paternal grandmother and he replied, “No things. It’s so fun at Nanny’s”. X was asked about the positives about spending time at his father’s home, he said, “I play with my toys there. I have Lego at Dad’s – a toy train out of Lego. It’s a flyer out of Lego”. X said that what was “not good” at his father’s house and he responded, “Sometimes I can’t do stuff that I want to do”. He was asked to detail what he could not do, and he initially responded, “I don’t know” and then he stated that he accompanied his father shopping on occasions, which he did not enjoy. X was asked generally what worried him and he stated, “I get worried about trying new things. Like the night carnival, like the huge lightning bolt, because it goes around and flips itself over. I’m too little to do it. It’s bigger than a Ferris wheel”. X was asked if anything had occurred at his father’s house that worried him, and he said, “I just have a good time there”.
[58] X provided a similar description of life at this mother’s home. He stated that he also plays with Lego there and that nothing worries him there and he responded to a question about, “What’s not so good at Mum’s?” with the statement, “I don’t know about that either. My brain doesn’t know”.
[59] X enthusiastically entered into identifying the feelings portrayed by the Bear Cards. He recognised feelings of “happy”, “sad”, “scared”, “worried” and “stressed”. X was asked to recount when he had experienced these differing emotions. He provided a description of a time that he felt “happy”. He said, “I was feeling happy at Dad’s. I spoke and I gave him a hug. I ran with my arms like this (demonstrated widespread arms) and I gave him a hug and he says, ‘Hello, Matey’”. X reported another occasion when he said that he had felt “happy” when he was at school and had a mixed bread sandwich. X narrated a time when he felt “sad” which he said also occurred while he was in his father’s care. He said, “When the mozzies come and bite me – at the dirty ponds. There’s big mullets there. We put a mullet trap in and we put bread around the trap and mullets eat the bread”. X said that he experienced feelings of “stress” when, “I don’t get stuff I want”. He said that he was unable to remember a particular time when this had occurred. X was asked at times that he felt sad or stressed whom did he require to help him with these bad feelings. X responded, that when he felt sad like the “sad bear” he wanted his father. He said that his father caused him to feel better after he was bitten by the mosquitos by taking him surfing. He was asked what happened when he felt sad in his mother’s care and he replied, “When I’m at Mum’s I want Mummy and when I am at Nanny’s I want Nanny”.
[60] X was asked to pretend that the Psychologist was magic and could grant him three wishes about his family. Initially he provided a wish regarding a rocket ship and when the Psychologist redirected him to think about wishes relating to his family, X said, “I wish for my Dad when I am at my Mum’s place and when I am at Mum’s I wish for my Dad. No other wishes”.
[61] X was interviewed the following week when he accompanied his father to the office. He was informally observed with his father when they arrived holding hands and appeared comfortable and happy together. Mr Elbers was responsive to X and X was demonstrative with his father, sitting on his knee for a short time during the beginning of the session. Mr Elbers and X laughed together about X having a sparkle on his nose, after having a bath the previous evening with a bath bomb that had sparkles on it. X happily agreed that his father would go to the coffee shop downstairs while X talked with the Psychologist. During the conversation X commented, when he heard a door open that his father had returned, which suggested to the Psychologist that his father’s whereabouts were in his mind despite being occupied and appearing comfortable. This is an indication of the developmentally appropriate reliance that X probably feels towards his father.
These observations were further enhanced by the Psychologist’s comments on X’s engagement with each parent in a “semi-structured interaction including free play”. I set out here pars.71 – 82:
[71] X was observed with each of his parents in a semi-structured interaction including free play with a generic box of toys, completion of a puzzle and a book reading.
[72] The first observation involved X with his mother. X appeared keen to start playing with the box of toys, he sat on the floor next to the box and looked with interest through the transparent sides of the box making explanations to his mother about what was contained in the box. X waited until his mother was sitting beside him and ready to assist his play before he commenced playing with the toys contained in the box. He was excited to find a puzzle and he told his mother that he considered the puzzle as easy to complete. He stated his confidence about completing the puzzle and also articulated how he would respond in the event that he found the puzzle difficult to complete. Ms Elbers followed his play and encouraged and scaffolded his play. X confidently assured his mother that he required minimal assistance from her and she appeared to enjoy his confidence by laughing at his statement. X assured his mother that he even found “tricky” puzzles easy and she agreed with him. X told his mother, “Did you know a long long time ago when I was in your tummy I had puzzle license?”. Ms Elbers laughed delightedly at X’s statement. X explained his term of “puzzle license” as “connect the pieces and be sure they go there”.
[73] Ms Elbers was asked to leave X in the room by himself. She explained to him that she was leaving and assured him that she would return. She said, “See you soon Bud” and he repeated this to her and watched her leave and then quickly resumed the completion of the puzzle. X remained very concentrated on the task, humming happily to himself and stating as he placed pieces, “this must go here”.
[74] X greeted his mother happily when she returned and commented on one of the pieces of the puzzle being missing and she assisted him to find the piece. She encouraged him to provide an account of the picture that was depicted in the puzzle and then suggested that they play with other items.
[75] X mildly objected to his mother’s request that he help her to pack away the toys. He asked her if he was expected to attend school that day and when she answered in the positive he commenced a narrative about the reasons why he should not be required to attend school that day. He argued that sick children should not attend school and suggested that he was “sick in the tummy” and therefore infectious to other children. Ms Elbers listened to his claims but clearly did not accept his argument and remained firm that he would help her complete the pack up of the toys. Ms Elbers commenced a countdown and X quickly cooperated in the clean-up.
[76] When the Psychologist suggested that X and his mother read a story book together X refused to participate and was defiant towards his mother in his refusal to his mother, “Mum, I. do not want to read a book”. Ms Elbers tried a few tactics to engage X in the book reading. He became increasingly defiant and adamant that he would not join in the activity. He said that he was too hungry to read a story together despite having eaten a number of items prior to the observation. He threatened to leave the room, despite his mother’s assertions that he should stay in the room and he then he became belligerent towards his mother and categorically refused to comply with his mother’s requests and the observation was discontinued without the book reading occurring.
[77] Prior to X and his mother’s departure from the Psychologists office at the conclusion of the observation X and his mother chatted together. His mother was heard to make positive comparisons between X and his father, for example stating the length of X’s eyelashes were inherited from his father rather than from her and that he had a mischievous expression at times that emulated his father’s expression.
[78] A discussion occurred with Ms Elbers a week following the observation. She commented that X was relaxed and calm about her leaving him during the semi-structured observation. She attributed this to his certainty of her return because he had always experienced her to be reliable and that he was very focused on the puzzle and he was happy to work on this while she was out of the room. Ms Elbers remarked on the difficulties she encountered with X refusing to comply with her requests to cooperate in the book reading. She said that, “Normally I wouldn’t fight him to read a book. I would have said let’s read it in the morning or I would have got him to do something else and then read it”.
[79] X enthusiastically commenced exploration of the toy box with his father. They played with toy tools and the meccano set. Mr Elbers engaged X with other toys and X became interested in the other toys that his father suggested. X and Mr Elbers engaged with a puzzle. Mr Elbers structured X to find ways to successfully complete the puzzle. They celebrated together when they found a piece of the puzzle that fitted and X commented that they were “rocking it” referring to their success at finding pieces that fitted. Mr Elbers showed delight in X’s enjoyment, interest and skill associated with completing the puzzle.
[80] When Mr Elbers was asked to leave X in the room on his own he assured X that he would return shortly and encouraged him to continue completing the puzzle, suggesting to X that he expected that X would finish the puzzle during his absence and stating to X that he was making very good progress. X appeared comfortable with his father’s departure, he hummed to himself, talked to himself about the puzzle and focused happily and diligently on the puzzle, while his father was out of the room. Mr Elbers commented to the Psychologist as he watched X behind the one-way window that X’s mannerisms associated with his concentration were similar to those that he himself exhibited. Mr Elbers also said while he was watching X that he wanted to return to the room to assist X. When Mr Elbers came back into the room X greeted him with a smile and Mr Elbers complimented him on his near completion of the puzzle. Mr Elbers watched X place the final pieces without interfering. He congratulated X on his successfully completion of the puzzle and X appeared happy with his father’s acknowledgement and then they together discussed the picture on the puzzle. Mr Elbers directed X to pack away the puzzle and he placed firm limits on X, when X became slightly exuberant in his method of putting the pieces away. X followed his father’s direction.
[81] Mr Elbers and X smoothly transitioned to the book reading. X appeared highly engaged in the first story book. They discussed the story as Mr Elbers read the book to X. They both appeared to enjoy the story reading together. Mr Elbers laughed at X’s commentary and X sat close to his father. On the completion of the story Mr Elbers commenced reading another story to X. From time to time Mr Elbers placed boundaries on X’s behaviour, such as when X attempted to sit on his father’s shoulders to mimic the book. In accordance with the theme of one of the stories Mr Elbers engaged X in discussion about X when he was a baby.
[82] Both X’s parents were warm and responsive towards X. They each exhibited enjoyment and delight in X’s play, X was inclusive of his each of his parents during their interaction, appeared to enjoy their company and accepted their direction in the most part. Both parents were predominantly non-intrusive of X’s play, and they were generally able to structure his activities. Mr Elbers appeared particularly alert to X’s behaviour and quickly responded to behaviour that he considered as inappropriate by calmly setting clear limits on him and showing his disapproval in his words and tone of voice. Ms Elbers in the main also provided boundaries and direction to X, such as around his mild resistance to the pack up of the toys and his opposition to attending school after the observation. Difficulties arose between them regarding X complying with his mother’s attempts to direct him to participate in the book reading. At this time X presented as a strong-willed child who behaved more like the adult than the child and Ms Elbers faltered in her role as the “bigger, stronger and wiser” adult presence for X.
School reports for X provided to the Family Consultant indicated that the child was progressing well at school.[3]
[3] See par.86 of Ms A's Report.
In pars.87 - 100, Ms A commented on specific terms of reference provided to her. These terms of reference in large measure incorporated a number of the “considerations” in s.60CC(3). The comments of the Family Consultant in this regard were as follows:
Terms of Reference: The nature of the relationships and emotional attachments between the child and each of his parents and other significant people.
[87] Attachment refers to the relationship that occurs for a child with a caregiver that provides the child with safety and security and therefore sets a platform for the child’s normal development. Factors such as – the ability to be independent, to be resilient in the face of stress, to be able to regulate emotions, to have lasting positive relationships with others and the development of positive self-esteem are all indicators of a child’s optimal development, which is based on experiencing secure attachment relationships with significant adult carers.
[88] From observation of X he is developing these qualities. This was observed by X’s ability to comfortably explore his environment, take direction from his parents and the Psychologist (such as initially engaging in the story stems and cooperating with the parameters of the stories); his warm interaction with his parents and a stranger (the Psychologist) and when required to separate from his parents he was able to do so with the certainty they would return. It was also indicated by his detailed and happy narrative that he provided of his relationship with each of his parents as well as other adults such as his paternal grandparents and Ms E. X also presented positive relationships with his peer group.
[89] X’s story stem completions indicated that he had an internal representation of parents meeting children’s needs, protecting them and resolving difficulties when they arose. He demonstrated in his story completions that he viewed adults as cooperating together and providing a nurturing household. These factors would suggest that a child experiences a secure family environment which is conducive to their development.
[90] X’s history of care would indicate that his mother has been his primary carer and therefore she has been most predictably available to meet his needs. It was noted that in many of X’s story stems the mother figure was the consistent nurturer for the children in the stories. Statements from Mr Elbers about X feeling “confident” with him at times of potential stress and threat (such as, in the surf) are indications of X’s attachment to his father. The account of X hurting himself while with his father and X accepting comfort and reassurance from his father also suggest an attachment to his father.
[91] X’s school reports and the responses from his parents and pre-school teacher on the SDQ also confirm X’s normal development cognitively, socially, emotionally and psychologically.
[92] The only developmental difficulty for X, identified during this assessment process was a toileting issue, which Ms Elbers believed may have lately resolved. It is understood that the medical specialist considered that this problem was not associated with any physical abnormality and therefore could only be attributed to an emotional/psychological difficulty. This might be associated with instability that X potentially experienced for during the breakdown of his parent’s relationship which would have coincided, with a period when many children are toilet training.
Terms of Reference: The views of the child (if the expert considers appropriate). The Expert should identify any factors that may impact the significance or weight of the child’s wishes, including his maturity, his ability to understand his wishes, factors which may influence his wishes (in the opinion of the Expert) and his ability to understand the long term consequences of his wishes;
Terms of Reference: The impact upon the child of the Court making a decision contrary to his wishes (if the expert considers appropriate).
[93] X is at the beginning of the development period known as “middle childhood”. The major issue of development during this period is developing competence at school, and within the self and the social world. During this developmental period children begin to think logically about concrete events but continue to have difficulty understanding abstract concepts. For example, during the early part of this developmental period children’s understanding of time is rudimentary and inaccurate. Children at this stage This is a period when children are learning about fairness, and luck and are likely to have black and white views about what they consider fair and equitable, regarding their own behaviour and that of others. Children in this period remain dependent on adult carers for many of their needs and although their world is increasing in size their family and their parents remain of paramount importance to them.
[94] X appears to be on a normal trajectory of development. He is still a very young child and is not cognitively, emotionally or psychologically developed enough to have considered views about his well-being (or to be able to adequately express views). From X’s depiction of his relationships and everyday life he appears content in the current arrangements and these are familiar to him. X’s specific views about his living arrangements were not sought during this report process due to his immature development and his inability to project his thought into future arrangements and adequately verbalise his potential wishes.
Terms of Reference: The understanding and awareness of the parents of appropriate parenting strategies and behaviours and their ability to implement such parenting strategies;
Terms of Reference: The attitude of the parents to the child and to their responsibilities of parenthood demonstrated by each of the parents, including but not limited to: their participation in (and ability to be involved in) the child’s emotional, medical and educational needs and events of significance:
Terms of Reference: The capacity of each parent to provide for the child’s emotional and intellectual needs.
[95] Mr and Ms Elbers each indicate their devotion and commitment to their parenting role and their relationship with X and from the assessment for this report this is reflected in X’s development. The empirical understanding around attachment and child development indicate that children develop in the context of their significant relationships with carer/s. X’s normal progression would indicate that he has experienced reliable, responsive and sensitive care from authoritative and warm adults. This would suggest that X’s parents have demonstrated capacity to provide for his emotional and intellectual needs to date.
[96] Ms Elbers stated that she has observed Mr Elbers dealing abusively with X during their relationship, at times when he had toileting problems and when he had not complied with direction to put on his pyjamas. She also referred to Mr Elbers taking a limited part in X’s medical appointments. During this assessment process there was no indication that X was tentative, worried or fearful in his father’s company.
[97] Parenting “strategies” are understood to refer to responses from parents to unacceptable behaviour from their children. Mr and Ms Elbers each report using “time out” responses when X is misbehaving. Ms Elbers also suggested that she uses distraction as a way of diverting X’s attention and potentially redirecting his behaviour in a less confrontational manner. Both X’s parents state that X is mostly a well-behaved child.
Terms of Reference: The level of risk (if any) of abuse, neglect or psychological harm to the child as a result of ongoing time with the mother or father, or any other persons.
[98] Abuse, neglect or psychological harm directed at a child may impact a child’s development and may result it adversely affecting the individual’s adult functioning in later life, potentially is all areas social, emotional, psychological and intellectual (Glaser, 2002; Holt et al ,2008; Shaffer et al, 2009)
[99] Other factors that place a child at risk of impaired development are factors such as family violence, poor mental health of parents and substance abuse (Cassidy and Mohr, 2001, van Ijendoorn et al, 2009; Cyr et al 2010). These factors render caregivers of children ineffective to provide for a child’s needs. In worst cases children experience caregivers as frightened or frightening, which can lead to disorganized patterns of attachment that can result in various levels of dysfunction, such as in social interaction; mental health issues, such as depression and anxiety; and at worst, psychopathology.
[100] From observation of X during the assessment for this report; his rich narrative of family life and the positive nature of his relationships as described by him and as observed; his ability to regulate his emotions at times of stress, such as when alone, when frustrated, when in the company of a “stranger”; his positive school reports and the positive developmental reports of his parents, suggest that X has not experienced insecure care that would be associated with living in an environment of abuse, neglect or psychological harm.
Ms A's Evaluation and Recommendations (pars.101 – 113) were in the following terms:
[101] X has lived with his mother for the two years since the separation and he has spent regular and “meaningful” time with his father through most of that time. The current arrangements appear to be meeting X’s needs as assessed during the process for this report. There was no indication that X was not meeting his developmental milestones cognitively, emotionally, psychologically or socially. X presented as a happy, thriving engaging young boy who has adapted to living between separated parents and has a positive relationship with each of his parents. All of these factors would indicate that X feels secure in his significant relationships, which would denote that he experiences his parents meeting his needs. He also expresses a particularly close relationship with his paternal grandmother.
[102] Ms Elbers submits that X should continue to live with her and spend time with his father as long as there are no safety concerns for X in Mr Elbers’ care. She is understandably anxious for X’s wellbeing in light of the allegations.
[103] Prior to the allegations regarding safety in his father’s care, Ms Elbers has had relatively minor concerns about X’s wellbeing with his father. She alleged however that Mr Elbers binge drank during their relationship and at these times his behaviour could be erratic. Mr Elbers denied in the interviews for this report any problems associated with alcohol consumption. His responses in the PAI however, suggest that he does acknowledge difficulties in this area. It is commonly understood that a large proportion of our society use alcohol as a means of managing or dulling stress. From Ms Elbers’ reports and the results of Mr Elbers' PAI Mr Elbers may be vulnerable to alcohol use at times of stress.
[104] Mr Elbers seeks orders that X live with him and spend time with his mother. This would be a significant adjustment for X. Such a change, for young children, who are most reliant on adults to regulate their external and internal worlds can be emotionally and psychologically stressful, with potential consequences in other areas of their life. X presents as a resilient little boy and would likely adapt to such an immense change better than a proportion of children. However, logistical factors, such as Mr Elbers being in full time work and sometimes spending periods away from Canberra and the imminent arrival of a new baby, could have ramifications for X’s adjustment. Such an alteration to X’s living arrangements should only occur if there were clear positive value for X of living primarily with his father. From the assessment of X during this report it is not apparent that changing X’s current living arrangements would benefit him.
[105] Any significant change in X’s circumstances, including a separation from either of his parents would not be in X’s best interests and might result in X’s development being truncated in the short and potentially long-term.
Recommendations
[106] Terms of Reference: Recommendations as to the appropriate living and care arrangements for the child and any appropriate professional assistance that may assist the parents and/or the child to implement the arrangements.
[107] That Mr and Ms Elbers share parental responsibility of X;
[108] That X live with his mother;
[109] That X continue in the current arrangement of spending an overnight with his father during each alternate mid-week and each alternate weekend.
[110] That X is at liberty to contact the parent with whom he is not living by telephone at any reasonable time and the parent with whom X is living with will facilitate X’s communication with the other parent.
[111] That Mr and Ms Elbers consider how they will communicate with each other regarding X in the future and that they consider engaging with a professional to assist in this process. Consideration should be given to Ms E being part of such a process. An agency such as Relationships Australia or private practitioners who work with couples such as Ms L or Ms M, Ms CC may be potential professionals who could assist in this
[112] That from early 2019 and following the commencement of the couple genuinely attempting to communicate effectively with each other; when X has completed his first year of full-time school; and once the paternal family has had an opportunity to adapt to some of the myriad changes in family life of having a small baby, that X commence spending an extra overnight with his father each fortnight or as agreed between the parents;
[113] That Mr Elbers consider whether it would be in his long-term benefit to gain support and understanding around alcohol and strategies to manage stress. ACT Health and private counsellors provide services in these areas.
Of course, the Recommendations were made quite some time prior to the more recent agreement(s) between the parents regarding the time-with arrangements for X and his parents.
Ms A was not required for cross examination.
The Family Report of Ms B
Also as noted earlier in these reasons, Ms B's Report, dated 8th June 2019, became Exhibit C. I should perhaps note that the Mother had reservations about the accuracy, among other things, regarding this Report. It was conditionally admitted.
The first section of Ms B's Report set out here are, primarily, her observations of X with his parents (pars.6.1 – 6.11):
X and his Father
6.1 X had last seen his father the previous morning. Joking, X said that his young brother DD was pretty annoying. X and his father began looking for fish outside my office window. X announced he had seen a duck. They chatted about catching trout and about catching flatheads down the Region G and X proudly told me that “once I caught the biggest flathead”. He talked about how the fish landed in the boat. They talked about catching squid. X announced that he always caught the biggest fish. X continued to look for fish out the window.
6.2 X said he had the whole day off school. His father proposed taking him for an ice cream after the interview. X told his father what he had eaten for lunch before coming to his interview. X described the donut he had eaten. It was some type of rainbow donut.
6.3 X and his father talked about having pulled down a fence at Ms E’s property the previous weekend and how he had told X that if he helped him, they would go halves in whatever they got for the fence. They chatted about how much they had got for this fence.
6.4 Before the end of the session, Mr Elbers affectionately cautioned X to behave well in an individual session with me. After he saw some UNO cards in my cupboard, X volunteered that he had a new sort of UNO game and told me about this.
X and his Mother
6.5 Ms Elbers advised that X was to go out with his maternal grandmother during her interview. He called her “granny” standing for “young at heart ma”. Ms Elbers explained that her twin sister had had her first child when she was only 19 and her mother had decided she was too young to be called anything else. X looked out the window with his mother to see if they could see any fish jumping in the lake. Ms Elbers showed interest in this. She said her mother had brought bread to go to feed the ducks with X during her interview. X and his mother enjoyed looking out the window. Ms Elbers asked X which sort of Lego he liked best and they discussed this. X said that some favourite Lego that he had at his father’s. He told me that he had built the Titanic out of Lego without instructions.
X
6.6 X initially said he did not know why he had to talk to me. He then said that he thought it was because his mum and dad were here. After I explained my role, X said “I wish that when… wish that we could have like we could have a week together the other week then on Sunday we can meet up at the park and swap over”. He was proposing a week about arrangement like they had in the school holidays. He advised that he had forgotten whether his parents knew about what he wanted and said neither of his parents had told him what to say to me.
6.7 In response to my query, X described both Ms E and EE as being “okay”.
6.8 When asked what the good things were at his father’s house, X responded “playing with all my Lego”. When asked if there was anything he did not like at his father’s, he said that he did not like “when all of us have to go out and I can’t just stay at home”.
6.9 When asked what the good things were at his mother’s house, X responded “I have Lego there too” before going on to add that he also liked playing with his cars at his mother’s. When asked what he did not like at his mother’s house, X responded “having a shower”.
6.10 If he had three wishes, X said he would wish to have a model set and a million dollars. I could not understand what he was saying in terms of his third wish. X volunteered that he has heard on the news that using a metal detector, a man had found a million dollars in coins at the beach. X was very chatty, bright and pleasant. X volunteered how much money he had in his bank account but said he had no idea what he was going to do with it. He then volunteered that he was saving up for a real school bus but said he had no idea how much this would cost. Happily, X chatted about wrestling with his father. He commented that he mostly like playing by himself because he was so creative.
6.11 During the test process, X jigged around on his knees. As the lengthy test process continued, X became increasingly distracted, wanting to talk about other things. This was not surprising, given his age. X was very helpful and cooperative during the test process. His test results at Attachment 3 indicated X was well attached to all the key adults in his life, deriving his feelings of self-worth from his perceptions of their regard for him. He loved all of them. Unusually, X directed very few negative items to any of the adults, suggesting a significant degree of denial and difficulty acknowledging any negative feelings. Not surprisingly, X was significantly more involved with his parents than with their partners but felt positively about both Ms Q and EE . Negative items directed to his father included that his father was rough, started fights, and did not love him enough.
Finally, I move to that part of Ms B's Report that dealt with her comments in relation to the agreed terms of reference, at pars.7.1 – 7.5.1:
7.1 The current arrangement in place is for X to spend time with his father four nights a fortnight during the school term time and week about with each parent during school holidays. Please provide your view as to whether this time should increase and if so by how many nights and over what timeframe.
7.1.1 Mr and Ms Elbers’ communication still remains problematic although Mr Elbers considered it had improved following the use of a parenting app. Ms Elbers remained apprehensive around Mr Elbers and said they could not even greet each other at changeovers. This does not suggest that this couple are yet ready to implement an equally shared arrangement for X. Nevertheless, it was very apparent that both parents love X, that he loves them and that both parents can offer him a range of rewarding activities, that will be developmentally beneficial for him.
7.1.2 Since the 1960s and 1970s when feminist ideals challenged the traditional family roles of mother as caretaker and father as breadwinner, both parents have frequently assumed greater involvement with their children, generally to the children's benefit. Since the value of mothers in their children's upbringing has never been challenged and given many fathers have increased their level of involvement with children in recent decades, studies have recently been devoted to the role of fathers in separated families.
7.1.3 The importance of fathers in children’s lives must not be ignored. Pryor and Rodgers (2001) point out that in families where fathers are involved, parents and children show high levels of well-being in a variety of ways including cognitive competence, empathy and internal locus of control. Fathers are important in assisting their children to regulate their emotions. Pryor and Rodgers (2001) noted that “involvement in care, the provision of nurturing, and generally engaged parenting behaviour are the aspects of fathering that are important for children, just as they are for parenting in general (p203)”.
7.1.4 The quality of the father-child relationship is very important and obviously X needs to spend significant time with his father to continue to maintain and develop their relationship. Pryor and Rodgers (2001) pointed out that there are strong links between positive interactions with fathers and a wide range of optimal outcomes for children aged between 5 and 18 years and noted “Fathers have an important contribution to make to their children’s well-being and their involvement has the capacity to foster development (p204)”.
7.1.5 Ms Elbers has raised significant historical care concerns particularly regarding substance abuse by Mr Elbers and his stepdaughter. It would appear that such concerns have been addressed and that these key adults have now addressed any issues. Ms E has defended herself against allegations of inappropriate, possibly criminal associations, and indeed, her security clearance and job suggest any such continuing associations are unlikely.
7.1.6 Ms Elbers also outlined a pattern of coercive, controlling violence in their relationship in the context of alcohol abuse. Mr Elbers denied any violence had occurred, failing to take responsibility for his behavior. Fortunately, X did not appear to have been adversely affected by this, possibly because he was so young and was not directly exposed to the conflict between his parents. He related well to both parents, although in his test results, he identified his father as being rough and as starting fights.
7.1.7 According to his mother, X’s encopresis has all but resolved quite recently. This elimination disorder is a serious problem in childhood, given the effects on a child’s self-esteem and the likely social ostracism by peers, referred to by Ms Elbers. X continues to wet his bed. Mr Elbers appeared somewhat impatient about this during his interview and he and Ms Elbers have not been able to adopt a united approach. It is very difficult to ascertain the causes of problems such as enuresis and encopresis in children and while psychological stress could be a predisposing factor (DSM-V, American Psychiatric Association, 2013, p359), it is always difficult to find a single definitive cause of stress in children. It is difficult to be certain that a change in care arrangements will not have a deleterious impact.
7.1.8 Unusually, in the test process X directed very few negative items to any of the adults, suggesting a significant degree of denial and difficulty acknowledging any negative feelings.
7.1.9 X is an only child at his mother’s and lives in a more complex household at his father’s, sharing attention with two babies.
7.1.10 On balance, given the historical concerns and as X presents as a somewhat vulnerable child, in my opinion, it would be best to implement any changes in his care regime slowly. The possibility of implementing an equally shared arrangement should be reviewed when X turns ten and in the interim the current arrangements should be maintained.
7.2 Please provide your view as to the ability of the parties to co-parent X including communication between the parties in regard to issues concerning X.
7.2.1 According to Mr Elbers, he had always found that his and Ms Elbers’ communication via text messaging and during changeovers at a playground went okay. He said they would always greet each other in a friendly manner, commenting “You sort of have to”. In Mr Elbers’ opinion the communication between them had improved “dramatically” by using the Our Family Wizard app. He said that his ex-wife had suggested this a while ago and said that being a bit stubborn, he had resisted it, arguing it was no different to text messaging other than that it cost money each year. However, since using this app, he conceded their communication had improved.
Ms Elbers explained that she and Mr Elbers did not actually speak to each other but would try to negotiate any matters via text messages or emails. She said that they could not speak to each other at all. Ms Elbers said that changeovers were at N Public Park and said any communication was never direct between them to the extent that they did not even greet each other. Ms Elbers said the only communication would be through X. Ms Elbers said that they had never been able to directly communicate since separating.
When asked if she was frightened of Mr Elbers, Ms Elbers said that she did not enjoy talking to him. She said she was not frightened when it was just Mr Elbers present but said she felt intimidated when Mr Elbers had someone else with him and said that he usually did. She explained that this would be either Ms E or his father or someone else. Ms Elbers said that she generally went by herself to get X and did not take anyone else with her.
7.3 Please provide your view as to whether there is any risk to X while in the care of his Father or his Mother including, but not limited to, any risk identified in either parent’s household. If any risk is identified what arrangements may be put in place to mitigate any identified risk.
7.3.1 As noted, there have been historical concerns in this matter about domestic violence and substance abuse. I have not seen any recent police reports or the results of any recent drug tests. The Court might well find such documents useful in substantiating Mr Elbers’ reports that there are no current risks to X in his household and could consider the use of ongoing drug tests to mitigate against any risk if there is any concern that Ms D or Mr Elbers pose any future risk.
7.4 Please provide your view as to the impact on X of ongoing litigation in this matter.
7.4.1 There is no doubt that exposure to ongoing interparental conflict impacts negatively on child well-being (Burke et al, 2007). Burke et al (2007) commented “The association between intense marital conflict and children’s poor adjustment has been repeatedly demonstrated, and children are found to have more psychological problems when their parents are in conflict, either during marriage or following divorce (p2)”.
7.4.2 X’s current denial of any negative feelings is unusual and potentially psychologically unhealthy, leading to internalisation of negative feelings later and related relationship issues. Exposure to ongoing litigation and conflict will not resolve this. It is to be hoped that any increase in X’s time with his father can be implemented after mediation and negotiation rather than by litigation.
7.5 Any other matter you think it is necessary to comment on and any recommendations that you consider may the court
X has had problems with encopresis and enuresis, suggesting he is a sensitive child who should not be disrupted further. If his enuresis persists much longer, X might benefit from professional help for this.
Ms B’s oral evidence was, respectfully, of somewhat limited value. For example, she confirmed that she did not have all documentary material before her when preparing and writing her Report.
As already recorded, she confirmed that a review of the parenting arrangements when X turned 10 contained no “magic” in relation to that age. She also confirmed that a more natural transition of “time with” arrangements would be at the commencement of a school term or school year.
Expert Evidence from Dr C (consulting pharmacologist)
Dr C prepared a Report which was annexed to an Affidavit, affirmed by him on 22nd May 2019. In brief, Dr C said (Report: par.2b) that the Father’s CDT testing was “highly suggestive of chronic harmful alcohol abuse.”[4]
[4] The Father’s CDT test results are at Annexure C to Dr C's Affidavit.
In his very brief oral evidence, Dr C said that one needed to be cautious in interpreting CDT test results in isolation. This led on to him indicating that a “highly suggestive” result could properly be considered to be but one explanation. Further, he indicated that while the consumption of 6 standard drinks per day would usually be regarded as “chronic”, the results will necessarily vary from individual to individual.
Dr C also said that low iron levels could also account for an elevated CDT result.
The Applicant’s Submissions
The Applicant’s submissions, filed 3rd July 2019, were as follows:
Father’s Final Submissions
1) The Court is requested to have regard to the Father’s Case Outline filed on 3 June, 2019 in conjunction with this document.
2) During cross examination the Mother agreed to the following Orders sought by Father (in his minute filed 3 June, 2019): 2, 3, 5, 6, 7, 8, 9, 10 and 16 to 23 inclusive. At the end of evidence on 12 June, 2019 the parents and Independent Children’s Lawyer agreed that X would spend time with his father during school terms from the current 4 nights a fortnight to 5 nights from the start of the 2020 school year. All parties have agreed that X should ultimately spend 6 nights a fortnight with his father but did not agree about when it should start.
3) Having regard to these concessions the Father does not press his application under sec 69ZT(3).
Therefore the outstanding matters are:
a)Whether the increase from 5 to 6/14 nights ought to commence from the start of Term 3 of 2020 (as sought by the Father) or from Term 1, 2021 (as sought by the Mother).
b)Whether permanent injunctions ought to be made enjoining the Father from permitting X to be left in the care of Ms D (Mother’s Orders 27 & 28) and from the Father consuming alcohol above the legal limit (Mother's Order 23).
c)Some other matters concerning minor variations to the orders sought by the Father. Filed herewith is an amended set of the Father's proposed orders which contain some minor changes and one additional order which will be addressed below.
The timing of the increase from 5 to 6 nights
4) It will not surprise the Court to hear that the Father is keen for X to spend 6/14 nights in his care as soon as possible although he does recognise the need for a smooth transition. The transition to 5 days will come when X will be about 7 ½. The Father considers that X will have adjusted appropriately by his 8th birthday for the final step. Unfortunately Ms B was not able to assist the Court, probably as the case as she understood it had evolved significantly by the end of oral evidence. There is no single piece of evidence upon which the Court may have regard to determine this issue. However in the Court’s great experience a meaningful relationship blossoms when a child is immersed in a parent’s care in their household. This implements the definition of a meaningful relationship with both parents fulfilled by the child’s own experience of all the beneficial aspects of life with each parent.
5) Mr Elbers has very competently cared for X for 4/14 nights for a long time. The Mother’s consent to a progression to 6 nights is her endorsement of that. There is no evidence that X will require 6 months more than his Father advocates for the final change to 6 nights. X’s best interests will be served if the transition to 6/14 nights is at the start of Term 3. There is no probative evidence against it and every reason to make the change then.
Ms D
6) Ms D who is aged 26 presented as a young woman who had broken free from her troubled past. She came to Court voluntarily and presented herself for cross examination to give the Court the best possible way of assessing her. Her manner of giving evidence was authentic and credible. She expressed contrition for her past behaviour that she was determined she would never repeat. Indeed her candor was impressive given that she was quite ashamed of her past. It is open to the Court to find that she has now become mature enough to appreciate the consequences of her past actions. No doubt the responsibility of raising FF, her baby boy, has brought these obligations to the fore. The Father and his partner Ms Q have also expressed confidence in Ms D by entrusting the care of X’s baby brother DD to Ms D when they are at work.
7) To paraphrase a purple passage of the Full Court’s decision in Waugh and Waugh (2000) FLC ¶93-052, [45] the primary consideration before granting injunctions is whether the injunctions proposed were necessary and went no further than necessary. One would have to add that any parenting injunction would also have to be in the best interests of the child. On balance in the case at hand no injunctions are appropriate.
8) The injunctions proposed restrain the Father from permitting Ms D to care for X, or remain alone with him. Order 28 it is submitted is so subjective that it is unenforceable. There is no evidence that Ms D has cared for X alone or been left with him alone. There is no evidence that Ms D intends to care for X in future and he has said nothing adverse about Ms D. No police or child protection records were tendered about her other than the incident before the birth of her son. The “concerns” expressed by the Mother need to be rationally based to warrant a permanent injunction which would remain in force until X turns 18 in 2030.
9) To borrow an idiom, the only hook the Mother may seek to hang her hat on was Ms D’s reluctance to undergo a drug test. This is understandable as she is a third party who has never acted in loco parentis for this young man. From her point of view there was nothing to prove by testing. She submitted to a much more important test, which was voluntarily to present herself to Court to give evidence. Respectfully despite skillful cross examination by Counsel for the Mother the Court would find that Ms D presented as a reliable young mother herself who has X’s best interests at heart. The interim injunction is therefore not necessary and ought to be dissolved. Ms D has earned the trust and forgiveness of the parents in these proceedings.
Injunction against the Father concerning alcohol
10) The Court would accept the evidence of Dr C pharmacologist, forensic toxicologist which in a nutshell was that:
a)The Father’s urine sample provided on 13 June 2017 showed no evidence of drug use in the 2 to 3 days before collection.
b)The sample collected in September 2017 contained elevated levels of CDT (an indirect alcohol biomarker) but the samples in November 2017 and May 2019 were within normal limits. The September 2017 result should not be interpreted in isolation as the other results are not suggestive of excessive alcohol consumption, rather abstinate or recreational use. [ l ] end page 4
c)The Father’s hair follicle test on 27 June 2017 returned codeine in his body in the previous 3 months. Dr C’s opines that the concentration of codeine level in the Father’s follicle test result was consistent with the Father’s explanation of his use of a prescription pain reliever called Nurofen plus. [3] pg 5
11) There is no evidence that the Mother insisted on further testing. Considering that the only abhorrent test result was about 19 months before the hearing there is no basis for any finding of risk posed by alcohol abuse. Further there is no probative evidence that the Father has ever abused alcohol or illicit drugs when X has been in his care. The permanent injunctions (which would remain in force for 11 years) are not necessary and in fact could impose significant practical problems with compliance for no benefit. As with Ms D, the Mother’s “concerns” must have a rational basis to warrant any injunction. They do not. The Court would also note that serious allegations of criminality made by the Mother against the Father and his family had fallen away by the end of oral evidence. It is inconsistent therefore to seek injunctions based on “concerns” that were demonstrated to be without substance and were ultimately abandoned by the Mother.
Amended Orders
12) Following the conclusion of evidence, the Father has had an opportunity to reflect of some minor amendments to his proposed orders as follows:
[4] Adding provision for variation of spending time by written agreement;
[4(a)] Adjustment of spending time during term to reflect the transition to 5 and then to 6 nights per fortnight.
[4(b)(ii)] To define which parent will care for X during the first week of each short school holiday period.
[4(c)(ii)] To define which parent will care for X during the first week of the Christmas school holiday period and each alternate week thereafter.
[19] An additional Order to provide for the parties to attend upon a therapist on at least 2 occasions per year for assistance with co-parenting. This was something both parties embraced in their evidence.
13) The addition of a new [19] has pushed forward the balance of the paragraphs by one digit so that [19] to [23] in the proposed orders filed on 3 June, 2019 have become [20] to [24] in the attached document.
The Respondent’s Submissions
The Respondent’s submissions, filed 23rd July 2019, were as follows:
RESPONDENT MOTHER’S WRITTEN SUBMISSIONS
1) These submissions are in response to the applicant’s submissions filed on 3 July 2019. The issues remaining in dispute between the parties are the timing for the increasing time for the child to 6 nights per fortnight with his father, issues about Ms D and some miscellaneous issues about the detail regarding the orders proposed by each party. The mother’s proposed orders are attached to these submissions.
INCREASE IN TIME TO 6 NIGHTS WITH FATHER
2) The key issue in this case was the relative ineffectiveness of the communication between the parents on important issues. The parties showed a significant lack of trust and faith towards the other parent and this has impacted on the parties’ ability to communicate and cooperate effectively. The father was cross examined extensively about his lack of effective responses (and in some case lack of any response) to some major issues involving the child.
3) Whilst the parties have shown an improvement in their superficial or less significant communication, at the time of the hearing they had still not addressed such major issues as the child’s bedwetting or the attendance upon parenting courses. As the child’s time with the father increases so will the importance of the parties’ communication and cooperation. The court could not be satisfied that currently the parties have the sort of communication and cooperation that would usually be expected for an arrangement that is close to equal time.
4) Whilst the parties have agreed to a method to hopefully improve their communication and cooperation, even the detail of that order is not agreed. Given the father’s reluctance or inability to properly engage with the mother about important issues affecting the child to date, the court should be cautious before moving the child’s time to 6 nights per fortnight. This is the main reason relied upon to support the delay in increasing the child’s time from 5 nights to 6 nights until the commencement of the 2021 school year.
5) The communication and cooperation between the parties presently shows a lack of faith and trust between them. Without faith and trust in the other parent, increasing the time to 6 nights will likely exacerbate or amplify any difficulties in their communication. The court should be cautious before increasing the time until those issues have been addressed. Caution was recommended by Ms B in her Family Report dated 8 June 2019, taking into account the child’s special needs and sensitivities.
6) The ICL suggested that the father’s inability to communicate was just a feature of his personality. With the greatest of respect, this comment does not assist when effective communication and cooperation are expected for close to equal time, arrangements. It is up to the father to ensure that he improves his effective communication. The mother has repeatedly shown that she has made substantial efforts to engage with the father to assist the parties to improve their communication about important issues.
7) In the High Court Case of MRR v GR the High Court said, at [15]: “65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s 65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”. The Full Court said that the same approach was equally applicable in relation to the Court considering whether parenting Orders satisfied the requirements in relation to “substantial and significant” time in s.65DAA(2). The reality in this matter is that at this point in time, the Father has demonstrated a lack of willingness to communicate with the Mother to the degree necessary for almost equal time to be feasible.
8) The other issue that arises in relation to timeframe to increase time is that the start of a school year is a good opportunity to change arrangements. It will also enable the child a substantial period of time to become accustomed to the increasing time to occur next year. The additional time will also give the parties further time within which to address their communication and cooperation. This approach is also consistent with the multiple recommendations from Family Consultants about the need to “take it slow” given the child’s difficulties, especially with encopresis and enuresis.
9) In Mazorski v Albright, and by reference to Full Court authority, Brown J set out an overview of principle in relation to Part VII of the Act resting on “twin pillars”. It is submitted that the Orders sought by the Mother meet the balancing of those twin pillars given the child’s health and the recommendations of experts.
MS D
10) The issues regarding Ms D are relatively straightforward. It is clear that she has used drugs in the past and the relatively recent past. She has also associated with known criminals. There is no evidence about Ms D’s current usage of drugs. Two issues arise about this lack of evidence.
(a) Knowing that Ms D’s drug use was an issue for the mother, and that there was evidence of prior usage, the father could have ensured that there was evidence of Ms D’s current non-usage if that was the case. Part of the communication that is likely to be of assistance for the parties moving forward will be addressing concerns that each party has.
(b) This is a potential Jones & Dunkel situation. If the father could have called the evidence than he should have. At the very least this was an uncooperative approach to the reasonable concerns of the mother given the evidence of Ms D’s prior usage. It is noted that the request for her to undertake tests was by the ICL and in accordance with the orders of this court (albeit it is conceded that the orders were not binding on Ms D). The father did not ask Ms D to undertake the tests when he could have.
11) The father, his partner and Ms D all say that Ms D is not going to be involved in the care of the child. Ms D agreed that she would undertake drug testing if the outcome was that she would be able to be involved in the care of the child. The mother puts forward alternatives to take account of this concession by Ms D. Ms D conceded both that she would undertake the drug testing if paid for by the mother and, implicitly, that she would like to be involved in the care of the child.
12) It is wrong to say that there is no evidence of risk in relation to Ms D. There is evidence that her behaviour in the past would have posed a risk to the child. She has refused to undertake drug tests so as to put this issue to rest by confirming what she claims is her current non-usage. The mother proposes that there be injunctions in relation to the father leaving the child in Ms D’s care that are consistent with the injunctions previously made by the Court by way of interim Order She accepts that these injunctions should be discharged if Ms D undertakes a hair follicle drug test and it shows no illicit substances. The mother will reimburse the costs for any such drug test. This is a reasonable compromise in circumstances where it is clear that Ms D’s previous behaviour is, on her own admission, problematic and where she has refused to provide clear objective evidence of a change in her patterns of behaviour by providing a drug test and where there is no evidence that Ms D has obtained any professional assistance in remaining drug-free.
13) The Father says that Ms D has “earned the trust” of the parents. To obtain the trust of the mother, Ms D would have undertaken the drug tests when requested.
MISCELLANEOUS ISSUES FROM PROPOSED ORDERS
14) The following orders from the amended minute of orders sought by the father are agreed and reflected in the mother’s minute of orders. Orders agreed – 1, 2, 3, 4bi, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23 and 24.
15) The father’s proposed orders only set out the orders that are to apply from 2020. Given that the parties agree that previous orders should be discharged, this is an issue. The mother’s proposed order 4ai, addresses this.
16) The Father’s proposed order 4a has 2 further issues. The current interim order provides for handovers at 12 noon on the Monday if it is a public holiday or non-school day. This was implemented to provide that both parties would have some time with the child on a public holiday or non-school day. This is what is proposed by the mother.
17) In addition, proposed order 4aii of the father’s orders proposes that the father have “no less than 6 nights” in the relevant period. It is unclear why this wording has been proposed. If the parties agree to additional time, then of course that time could occur. If, for example, the father were unable to spend time with the child on one or more nights in that period for reasons of his own then, arguably, the father could maintain that he needs to have make up time for those periods, and thereby impacting the child’s time with his Mother and disrupting his routine.
18) The mother proposes definitions in relation to school holiday time so as to make it easier for the parties to navigate, and plan ahead for, these periods. In particular, the mother proposes that the first week of each school term be fixed as to who the child will be with. This is important for the mother as she needs to put in place before and after school care arrangements. It is noted that previously she had put these in place for herself and the father and ended up paying for a substantial period of time when the father was not using the services without notice to her. The father’s proposed orders 4bii and 4cii will not result in certainty and will create difficulties for the mother in organising her out of school care.
19) As identified earlier, the parties have agreed to meet with a professional to assist them to improve their communication and cooperation (Father’s proposed order 19 and mother’s proposed order 6). The father’s proposal would require the parties to meet with this professional on 2 occasions each year until the child turns 18. The mother’s proposal is focused on the parties meeting with this person as quickly as possible after orders are made and then engaging with that person in accordance with the recommendations of that expert. The parties may need more intensive engagement for a period of time initially, but also they may come to a point where they no longer require that assistance.
20) The mother proposes a continuation of the interim order restraining the parties from physically disciplining the child. It is unclear why the father does not seek this order.
21) The mother has proposed orders 20 – 21. These are part of the interim orders currently in place. It is unclear why the father does not agree to these orders.
22) The mother’s proposed order 22 addresses alcohol consumption. The evidence supports a finding that the father probably had some issues with alcohol consumption at the time of the first test. Both parties say they do not drink to excess and will not drink to excess when the child is with them. The proposed order is mutual. It does not prevent consumption of alcohol – just excessive consumption. The proposed order is a reasonable balance in circumstances where there are allegations of prior alcohol consumption by the father and some objective evidence supporting that proposition. It is noted that the father’s explanation for the initial result showing a concerning level of alcohol consumption was not consistent with his own expert, who disagreed that the explanation provided would account for the result.
23) The parties agree to continuing to use the “Our Family Wizard” website for communication (or such other parenting communication tool as is agreed). The mother’s proposed order 23 ensures that the parties continue to renew their subscriptions to this agreed method of communication.
24) The mother seeks a notation from the court about the father’s evidence that he does not intend to relocate to the Region G of New South Wales. It is noted that the mother’s proposed orders at the trial included provision for the father relocating away from Canberra. It is a result of the father’s advice that she does not press those orders and that should be noted given her concern about a need for further proceedings if he does relocate
The Independent Children’s Lawyer’s Submissions
The ICL’s submissions, filed 7th August 2019, were as follows:
1) The ICL relies on the Outline of Case filed by the ICL on 4 June 2019.
2) The Father filed a Minute of Order on 3 June 2019. The Mother advised the court that she agreed to the following Orders as per the Minute of Order;
Order 2, 3, 5, 6, 7, 8, 9, 10 and 16 through to 23.
3) On 12 June 2019 it was further agreed between the parents that X would commence spending 5 nights a fortnight with his Father from the commencement of Term 1 2020. The parents further agreed that X should ultimately be spending 6 nights a fortnight with his Father.
4) The issues in dispute that remained outstanding at the end of the hearing were;
a)When the progression from X spending five nights a fortnight with his Father to six nights a fortnight should occur.
b)Whether there should be any Orders in respect of Ms D, the adult daughter of the Father’s partner.
c)Whether there is a need for an Order prohibiting the consumption of alcohol by the Father when X is in his care.
5) It was also clear from the evidence that communication between the parties has been an issue and both parties were cross examined on their past communication with each other and how they intended to proceed in the future. Both the Mother and the Father gave evidence that they had communicated poorly with each other. The Father conceded that he did not respond to some of the emails sent by the Mother. The Mother conceded that she had contacted numerous people, including her solicitor and the child protection authority, but not the Father, when X disclosed to her what the child said had occurred at the Father’s home at the commencement of these proceedings. She agreed that she would deal with any such incident differently in the future and would contact the Father.
6) Counsel for the Mother in their written submissions at points 6 and 7 suggested that the ICL formed the view that the Father’s inability to communicate was simply a feature of his personality which did not assist when determining an arrangement such as equal time. With respect this was not, and is not, the view of the ICL. The ICL explored with both parties why communication had been problematic. The Father admitted that he did not read long detailed emails from the Mother and also conceded that he would respond to short directed communication that addressed a specific issue. Exploring how the parties could communicate in the future is relevant and any arrangement cannot be devoid of the personality of the people engaged in the communication.
Progression of Time.
7) The parties have already agreed to X spending an increase in time to five nights each fortnight with his Father commencing 2020. It is the timing of a further increase that is at issue, not whether the increase should occur.
8) In regards to the progression of time, the Father sought that that X commence spending six nights in his care from the time of X’s 8th birthday in 2020. The Mother seeks that the increase in time commence at the commencement of Term 1 2021.
9) The Family Report Writer, Ms B, gave limited evidence on the issue. In her report she recommended that the increase should occur when X reached age 10y. Under cross examination by the ICL she agreed that there was no ‘magic age’ for the time to increase.
10) The Family Report Writer agreed with the proposal from Counsel for the Mother that a natural progression for increased time would be at the start of the school year.
11) The ICL put to Ms B that a natural progression could also commence at the start of a new school term. Ms B agreed.
12) The Mother gave evidence that she struggled when X was not in her care as it felt “empty” when he was not there. They did many things together. The Mother gave evidence that X did not cope well with change and that he would need some time to adjust to spending five nights with his Father before the move to six nights commenced.
13) It was put to the Mother that it was possible that she was not coping with the change for X to spend more time with his Father. She denied that this was the case.
14) X is currently spending more than 5 nights with his Father during school holiday time. There is no evidence that he is not coping with this additional time with his Father.
15) The ICL agrees that an increase in time should occur at a natural break such as the commencement of the school year or a new school term.
16) The ICL submits that it is in the best interest of X to commence spending six nights a fortnight with his Father at the commencement of the school Term 3 after the July school holidays 2020. There appears to be no basis for postponing the increase in time to six nights a full twelve months after the increase to five nights when X is already spending more than six nights with his Father during school holiday time.
Ms D.
17) Ms D is the adult daughter of Ms E, the partner of the Father. Ms D currently resides with her young son in the same household as the Father and Ms E.
18) The Mother asserts that there is a requirement for Orders prohibiting X from being in the unsupervised care of Ms D due to Ms D’s previous drug use and association with people engaged in criminal acts.
19) The Mother asserts that there is a risk of current drug use by Ms D as she declined to comply with a request by the ICL to undergo drug testing.
20) Ms D attended court voluntarily and was a credible witness in the view of the ICL. She admitted that her past behaviour was a cause of concern. However, she gave evidence that since she has had her own child she has addressed the behavioural issues that she previously engaged in. There has been no involvement of child protection with Ms D with her own child. The subpoena material did show that Ms D had a drug driving charge in February 2018. Ms D also gave evidence that her own Mother as well as the Father would always act protectively in regards to X as well as Ms D’s son and their own young baby.
21) Ms D gave evidence that she did “not want to be involved in the proceedings at all” This included not providing a drug test. She also gave evidence that she did not provide care for X and therefore it was not an issue that she had to address.
22) The Mother raises that the Father could have asked Ms D to undertake the drug test as requested by the ICL. The Father’s evidence was that Ms D was an adult, not part of the proceedings and did not want to be involved.
23) X has been spending time with his Father at the Father’s home with Ms D present. There is no evidence that X has suffered any harm at the hands of Ms D.
24) It is submitted that the Court should make Orders only when necessary. In the matter of Waugh and Waugh (2000) FLC 93-052 the court considered the making of injunctions and determined that the primary consideration is whether the injunction was necessary or went further than necessary.
25) The ICL submits that as the evidence is that Ms D is not currently looking after X or looking after him in the future, an injunction prohibiting the Father to allow X to be in the unsupervised care of Ms D is unnecessary.
Restriction on Alcohol consumption.
26) The Mother asserts that the Father has abused alcohol and sought that the Father be prohibited from consuming alcohol whilst X was in his care.
27) There is historical evidence that the Father has previously engaged in concerning behaviour due to excess alcohol consumption including spending a night in the Watch House.
28) The Father provided a CDT Test in June 2017 which showed elevated levels. The Father’s evidence was that this was due to the amount of alcohol consumed during a break away with male friends. Further tests in November 2017 and May 2019 were within normal limits.
29) Dr C was cross examined on both the CDT Test and the Father’s Hair Follicle tests. Dr C confirmed that the CDT tests should not be looked at in isolation and that the best evidence was to consider the tests as a whole.
30) Both Ms A and Ms B prepared Family Reports in this matter. The Father stated to both Report Writers that he “did have a beer after work”. At the time of meeting with Ms B in 2019 the Father stated that his alcohol consumption had decreased and he had not drunk for over one month.
31) There is no evidence that since separation X has been at risk whilst in his Father’s care due to alcohol consumption.
32) The ICL would support an Order that neither parent shall consume alcohol above the legal driving limit when X is in their respective care.
Additional Order sought by the Father.
33) The Father seeks an additional Order that the parents to attend upon a therapist twice per year to assist the co parenting relationship. Both parties agreed that this would be useful when this suggestion was put to them. The ICL supports such an Order and agrees with Counsel for the Mother that the requirement to attend should be until the parents are advised that the assistance is no longer required.
Miscellaneous Issues raised by the Mother.
34) The ICL has no issue with Order 4ai as sought in the Mother’s Proposed Minutes.
35) The ICL has no issue with changeover being 12 midday if the Monday is a non-school day unless otherwise agreed by the parties.
36) The ICL would support an Order for makeup time for a parent if X is unable to spend time with a parent that he should be spending time with due to a specific event such as a holiday with the other parent or a special event for either family. The ICL does not support a parent having makeup time if X is unable to spend time with that parent due to the unavailability of that parent unless agreed by the parties. The ICL would seek an Order that any makeup time occur within a specific time period and that it is not include special days such as Christmas or the child’s birthday unless the parents agree.
37) The parties may find it beneficial to have set school holiday time with the provision to agree to vary this if necessary.
38) The ICL supports an order that no party physically discipline X and not allow any other person to do so.
39) The ICL has no issue with Orders 20, 21 and 23 as sought in the Mother’s Minute of Order.
40) The ICL does not oppose the Notation as sought by the Mother in her Minute of Order.
Legislative pathway
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:[5]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[5] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[6]
[6] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration and disposition
Very summarily, I note the following matters in the light of the considerations listed in s.60CC(3) of the Act. I will not, and need not, repeat my comments at the outset of these reasons regarding a degree of inutility in ranging across the statutory considerations precisely because the parties (a) acknowledge that X has a good and close relationship with both parents, (b) all experts agree on the same basic fact, and (c) the parties have agreed on all salient matters except for the transition period of the increased time of X with his Father. Nonetheless, for more abundant caution, I will traverse these statutory hazards very summarily. The following comments should all be taken as formal findings based on the expert evidence and the evidence, limited as it was, from the parties. I will address only those considerations that actually arise on the evidence.
The considerations in s.60CC(3)(a) and (b) may be responded to by noting that the child’s “views”, as recorded in each of the family reports, bespeak a good and close relationship with both parents, and the child wanting to spend time with both of them. The parents’ evidence did nothing to subvert or contradict this. While his age militates somewhat against his views being significantly determinative, X’s views are nonetheless important and some weight ought to be given to them.
Considerations in sub-paragraphs (c) – (d), (f) and (i) in the light of all the evidence were, in my view, relatively uncontroversial. The primary “challenge” (if I may speak in those terms) invariably and most relevantly related to the communication between the parents which, slowly but surely, on the evidence of both parties, is improving. I accept too that the Father has addressed, and continues to address, his use of alcohol. Otherwise, neither in the expert evidence, nor in the evidence of the parties, was there any doubt about how well cared for and looked after is X.
Issues of “practical difficulty and expense” do not arise on the evidence.
The agreement reached by the parties, and the transition now ordered, in my view, readily acknowledges the considerations set out in s.65DAA of the Act. In a relatively short time, the “time-with” parenting arrangements for X will move to a shared care, equal time regime.
Further, given that the parties agree on an Order for equal shared parental responsibility, I do not need formally to consider matters relating to that matter.
In my view, the Orders proposed regarding the single issue of “transition” of X’s time with his Father are not only in the child’s best interests but also are Orders that are least likely to lead to the institution of further proceedings in relation to X.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 20 December 2019
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